What internal procedures can employers apply when employees commit legal violations?

During the term of a labor contract, an employee’s involvement in legal violations can pose a significant challenge for employers. This is especially true when the employee is subjected to measures such as temporary detention or custody for investigation purposes as mandated by competent state authorities. In such cases, the employer’s approach to handling the situation in a balanced manner that protects the legitimate interests of all parties involved under the labor contract, while maintaining a stable, harmonious, and healthy working environment, becomes an issue of utmost importance. This article aims to propose and provide suggestions for employers to consider developing internal procedures that can be applied when employees commit legal violations.  

Firstly, employers should prioritize clarifying and verifying information regarding the employee’s legal violation. Employers need to begin by determining critical details about the employee’s violation. For instance, did the violation occur during working hours or after working hours? Where did the violation take place? Even if the violation occurred after working hours and outside the workplace specified in the labor contract, employers should still conduct an internal review to clarify these issues. This stage is crucial and necessary as it forms the basis for defining and limiting the employer’s responsibilities regarding the violation. If it can be determined that the violation occurred after working hours and is unrelated to the workplace or the labor contract, the violation becomes a personal issue for the employee, independent of their employment relationship with the employer. In this case, the response will differ. Conversely, if the detention relates to work performed for the employer, a different approach must be taken.   

To ensure comprehensive understanding of the situation, employers may consider contacting the employee’s family to gather information. This approach not only reflects the employer’s concern for their employee but also provides the necessary insights to objectively assess the situation and related matters. Consequently, it enables the employer to develop a response plan that minimizes potential risks. 

Additionally, under investigation procedures, when an individual is detained, authorities are required to notify the detainee’s family, the local authorities (commune, ward, or township) where the detainee resides, or the organization where the detainee works or studies.2 Therefore, contacting the employee’s family serves as an efficient and reliable channel for obtaining necessary information.  

Next, for handling the employee’s violation, to address an employee’s violation, employers may base on (a) provisions in the labor contract and/or independent agreements signed between the employer and the employee, or (b) initiate disciplinary action under labor laws. 

a) Applying provisions in the labor contract

When applying provisions in the labor contract, it is important to review and evaluate whether the contractual terms comply with labor laws. Any non-compliant clauses could expose the employer to legal risks, such as the employee filing a lawsuit. 

b) Disciplinary Actions

To discipline an employee, the employer must meet the following conditions: 

• Statutory time limit for disciplinary action: The action must be taken within the timeline prescribed by Article 123 of the Labor Code 2019.

• Grounds for disciplinary action: The employee’s misconduct must be specified in the employer’s internal labor regulations, the labor contract, or relevant labor laws (Article 127.3 of the Labor Code 2019). 

• Proof of the employee’s misconduct: The employer must provide evidence of the employee’s violation (Article 122.1.a of the Labor Code 2019). 

• Disciplinary procedures: The disciplinary process must comply with the requirements and procedures of the labor law. 

In cases where, in addition to the labor contract, the employer has not established and issued internal labor regulations or any other relevant documents, handling violations will be quite disadvantageous and risky for the employer. This is because the employer will have to rely solely on the provisions of the Labor Code 2019 as the basis for disciplinary action. The provisions of the Labor Code 2019 generally only set out standard regulations, while specific and clarifying provisions are usually found in internal labor regulations or labor contracts. In this situation, the employer needs to review the group of behaviors they wish employees to pay special attention to and comply with strictly. From there, supplementing, developing, and finalizing an internal legal framework (such as labor contract templates, issuing internal documents like labor regulations or collective labor agreements) will become more appropriate and feasible. Identifying these behaviors should be based on the specific nature of the work for each group of employees. As a result, the development and issuance of such regulations will be more practical when handling cases requiring action. 

See more:

1/ Obligations of employers to organize labor safety and hygiene training

2/ Key consideration for drafting labor regulations in the enterprise

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