Will the measure of dismissal for disciplinary reasons be taken against Vietnamese female employees who are pregnant?
When will employers dismiss employees for disciplinary reasons in Vietnam?
An employer may dismiss an employee for disciplinary reasons in the circumstances are specified in Article 125 of the Labor Code 2019 as follows:
- The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
- The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
- The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of the Labor Code 2019.
- The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Will the measure of dismissal for disciplinary reasons be taken against Vietnamese female employees who are pregnant?
Will the measure of dismissal for disciplinary reasons be taken against Vietnamese female employees who are pregnant?
Principles of handling labor discipline are specified in Article 122 of the Labor Code 2019:
Principles and procedures for taking disciplinary measures at work
1. Disciplinary measures against an employee shall be taken in accordance with the following regulations:
a) The employer is able to prove the employee’s fault;
b) The process is participated in by the representative organization of employees to which the employee is a member;
c) The employee is physically present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present;
d) The disciplinary process is recorded in writing.
2. It is prohibited to impose more than one disciplinary measure for one violation of internal labor regulations.
3. Where an employee commits multiple violations of internal labor regulations, he/she shall be subjected to the heaviest disciplinary measure for the most serious violation.
4. No disciplinary measure shall be taken against an employee during the period when:
a) The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;
b) The employee is being held under temporary custody or detention;
c) The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of this Labor Code;
d) The employee is pregnant, on maternal leave or raising a child under 12 months of age.
5. No disciplinary measure shall be taken against an employee who commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control.
6. The Government shall provide for the principles and procedures for taking disciplinary measures at work.
Thus, no disciplinary measure shall be taken against an employee who is pregnant, on maternal leave or raising a child under 12 months of age.
In addition, in Clause 3, Article 137 of the Labor Code 2019, the employer must not dismiss an employee or unilaterally terminate the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operation, declared by a provincial business registration authority that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations.
What is the time limit for taking disciplinary measures at work in Vietnam?
Time limit for taking disciplinary measures at work is specified in Article 123 of the Labor Code 2019 as follows:
- The time limit for taking disciplinary measures against a violation is 06 months from the date of the occurrence of the violation. The time limit for dealing with violations directly relating to finance, assets and disclosure of technological or business secrets shall be 12 months.
- In case the time limit stipulated in this Article has expired or is shorter than 60 days when the period stipulated in Clause 4 Article 122 of Labor Code 2019 expires, the former may be extended for up to 60 more days.
3. The employer shall issue a disciplinary decision within the period specified in Clause 1 and Clause 2 of this Article.
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