Vietnam: In what cases will employees be dismissed? Is it illegal to conduct oral dismissal of employees?
In what cases will employees in Vietnam be dismissed?
According to the provisions of Article 125 of the Labor Code 2019, an employer may dismiss an employee for disciplinary reasons in the following cases:
- 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 this Code.
- 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.
Shall employees in Vietnam be compensated when being illegally dismissed?
For unlawful dismissal is considered as the act of unilaterally terminating the employment contract of the employer.
Pursuant to Article 41 of the Labor Code 2019, enterprises must reinstate the employee in accordance with the original employment contract, and at the same time must compensate employees with the following amounts:
- Pay the salary, social insurance, health insurance and unemployment insurance premiums for the period during which the employee was not allowed to work.
- Pay at least 02 months' salary according to the employment contract for the employee.
In case the employee does not wish to return to work, in addition to the above 02 compensations, the employee is also paid severance allowance.
Is it illegal to conduct oral dismissal of employees in Vietnam?
If the employee falls under one of the 11 cases of disciplinary action, the employer has the right to fire.
However, according to the provisions of Article 122 of the Labor Code 2019, the taking of disciplinary measures in general as well as dismissal for disciplinary reasons must comply with the principles, order and procedures specified in this Article.
Accordingly, the dismissal for disciplinary reasons against employees must ensure the presence of employees and representative organizations of employees at the grassroots level and must be made in minutes, not apply more than one disciplinary measure for one violation.
At the same time, the dismissal for disciplinary reasons must comply with the order and procedures in Article 70 of Decree 145/2020/ND-CP on labor discipline with the following steps:
- Determine the violation.
- Organize a meeting to take disciplinary measures.
- Issue decisions on taking disciplinary measures
- Publicly announce decisions on taking disciplinary measures.
Thus, the employer must carry out the above steps and issue a dismissal decision sent to the employee to be considered as dismissal in accordance with regulations.
Therefore, oral dismissal is against the law. This is also one of the acts sanctioned administratively in Clause 2 Article 19 of Decree 12/2022/ND-CP:
Violations against regulations on labor discipline and material responsibility
...
2. A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed upon an employer for commission of one of the following violations:
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dd) Failing to follow processes, procedures and time limits set out in law when implementing disciplinary measures at work or paying compensation for damage;
Thus, the employer has the right to dismiss the employee committing violations in case the dismissal for disciplinary reasons is taken, and the dismissal of the employee must be carried out in accordance with the prescribed procedures. If the employer conducts oral dismissal or other illegal forms, the employer may be fined from 05-10 million VND.
In addition, according to Point a, Clause 4, Article 19 of Decree 12/2022/ND-CP, the employer is compelled to reinstate the employee and pay full salary as agreed in the employment contract to the employee for the period during which the employee is dismissed by the employer for disciplinary reasons.
Note, the above fine only applies to individuals. For organizations, the fine shall be doubled.
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