May an employer in Vietnam dismiss an employee without proving the employee’s fault?
- May an employer in Vietnam dismiss an employee without proving the employee’s fault?
- In Vietnam, is it illegal to dismiss an employee who voluntarily takes 5 days off a week to care for his/her family member suffering from serious illness?
- Is it allowed to dismiss an employee under temporary custody or detention in Vietnam?
May an employer in Vietnam dismiss an employee without proving the employee’s fault?
Under Point a, Clause 1, 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.
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Thus, the employer that wishes to dismiss an employee must prove the employee's fault.
At the same time, Clause 3, Article 127 of the Labor Code 2019 stipulates as follows:
Forbidden actions when taking disciplinary measures in the workplace
1. Harming the employee's health, life, honor or dignity.
2. Applying monetary fines or deducting the employee’s salary wage.
3. Taking a disciplinary measure against an employee for a violation which is not stipulated in the internal labor regulations or employment contract or labor laws.
Under the above regulations, taking a disciplinary measure against an employee for a violation that is not stipulated in the internal labor regulations, employment contracts, or labor laws is a forbidden action.
Thus, if the employer in Vietnam dismisss an employee without proving the employee's fault or the dismissed employee's behavior is not specified in the internal labor regulations, employment contract, or labor laws, such dismissal is contrary to the provisions of the law.
In Vietnam, is it illegal to dismiss an employee who voluntarily takes 5 days off a week to care for his/her family member suffering from serious illness?
Under Clause 4, Article 125 of the Labor Code 2019 on dismissal for disciplinary reasons:
Dismissal for disciplinary reasons
An employer may dismiss an employee for disciplinary reasons in the following circumstances:
1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
2. 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;
3. 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 this Code.
4. 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, dismissals; the employee or his/her family member suffering from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Under the above regulations, dismissal for disciplinary reasons shall not taken against the employee who fails to go to work for a total period of 05 days in 30 days for justified reasons.
Justified reasons include natural disasters, dismissals; the employee or his/her family member suffering from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Thus, if an employee fails to go to work for a total period of 05 days in 30 days for caring for his/her family member with certification by a competent health facility, it is considered to have a justified reason. In this case, the employer is not allowed to dismiss the employee.
Is it allowed to dismiss an employee under temporary custody or detention in Vietnam?
Under Article 122 of the Labor Code 2019:
Principles and procedures for taking disciplinary measures at work
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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.
According to regulations, no labor disciplinary measure shall be taken against an employee under temporary custody or detention.
Thus, the employer is not allowed to dismiss an employee under temporary custody or detention.
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