Vietnam: May employees who are sexually harassed at the workplace unilaterally terminate their employment contracts?
- Who receives complaints from employees who are sexually harassed at the workplace in Vietnam?
- May employees who are sexually harassed at the workplace in Vietnam unilaterally terminate their employment contracts?
- What is the administrative fine imposed for sexual harassment in Vietnam? Will persons committing sexual harassment be liable for criminal prosecution?
Who receives complaints from employees who are sexually harassed at the workplace in Vietnam?
Under Article 84 of Decree 145/2020/ND-CP regulating sexual harassment in the workplace:
Sexual harassment in the workplace
1. Sexual harassment defined by Clause 9 Article 3 of the Labor Code may occur in the form of a request, demand, suggestion, threat, use of force to have sex in exchange for any work-related interests; or any sexual acts that thus create an insecure and uncomfortable work environment and affects the mental, physical health, performance and life of the harassed person.
2. Sexual harassment in the workplace includes:
a) Actions, gestures, physical contact with the body of a sexual or suggestive nature;
b) Verbal sexual harassment: sexual or suggestive comments or conversations in person, by phone or through electronic media
c) Non-verbal sexual harassment: body language; display, description of sex or sexual activities whether directly or through electronic media.
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Under Point d, Clause 2, Article 118 of the Labor Code 2019:
Internal labor regulations
1. Every employer shall issue their own internal labor regulations. An employer that has at least 10 employees shall have written internal labor regulations.
2. The contents of the internal labor regulations shall not be contrary to labor laws or to relevant legal provisions. The internal labor regulations shall include the following key contents:
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d) Actions against sexual harassment in the workplace;
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Sexual harassment in the workplace is any sexual act committed by any person towards another person in the workplace without the consent of that person. The workplace is any place where the employee actually works according to the agreement or assignment of the employer.
According to the above law, sexual harassment is specified in the internal labor regulations. Employees who are sexually harassed at the workplace can make complaints to their supervisory leaders for settlement according to the internal labor regulations of the enterprise.
May employees who are sexually harassed at the workplace in Vietnam unilaterally terminate their employment contracts?
Under Point d, Clause 2, Article 35 of the Labor Code 2019:
The right of an employee to unilaterally terminate the employment contract
1. An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employer in advance:
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2. An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:
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d) is sexually harassed in the workplace;
Thus, employees who are sexually harassed at the workplace in Vietnam may unilaterally terminate their employment contracts without prior notice.
What is the administrative fine imposed for sexual harassment in Vietnam? Will persons committing sexual harassment be liable for criminal prosecution?
Under Clause 3, Article 11 of Decree 12/2022/ND-CP:
Violations against regulations on performance of employment contracts
1. A fine ranging from VND 1.000.000 to VND 3.000.000 shall be imposed upon an employer for reassigning an employee to perform a work which is not specified in the employment contract without giving 03 days’ prior notice or without notification, or with an ambiguous notification, of the reassignment period, or reassigning works that are unsuitable for the employee’s health and gender.
2. A fine ranging from VND 3.000.000 to VND 7.000.000 shall be imposed upon an employer for commission of one of the following violations:
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3. A fine ranging from VND 15.000.000 to VND 30.000.000 shall be imposed for committing acts of sexual harassment in the workplace if not liable to criminal prosecution.
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Thus, an administrative fine ranging from VND 5,000,000 to VND 30,000,000 may be imposed for sexual harassment at the workplace depending on the nature and seriousness of the violation.
In addition, Article 155 of the Criminal Code 2015 as amended by Point e, Clause 2, Article 2 of the Law on amendments to Criminal Code 2017 stipulates as follows:
Insults to another person
1. Any person who seriously insults another person shall receive a warning, be liable to a fine of VND 10,000,000 - VND 30,000,000 or face a penalty of up to 03 years' community sentence.
2. This offence committed in any of the following circumstances carries a penalty of 03 - 02 years' imprisonment:
a) The offence has been committed more than once;
b) The offence is committed against 02 or more people;
c) The offence involves abuse of the offender's position or power;
d) The offence is committed against a law enforcement officer in performance of his/her official duties;
dd) The offence is committed against a person who cares for, teaches, raises or provides medical treatment for the offender;
e) The offence is committed using a computer network, telecommunications network or electronic device;
g) The victim suffers from 31% - 60% mental and behavioral disability because of the offence.
3. This offence committed in any of the following circumstances carries a penalty of 02 - 05 years' imprisonment:
a) The victim suffers from ≥ 61% mental and behavioral disability because of the offence;
b) The offence results in the suicide of the victim.
4. The offender might be prohibited from holding certain positions, practicing his/her profession or doing certain jobs for 01 - 05 years.
Currently, sexual harassment in the workplace is not specifically regulated in the Criminal Code 2015.
However, sexual harassment that involves using words or actions to degrade the personality and seriously insult the employee's honor and dignity may be liable for criminal prosecution for insults to another person according to the legal provisions of the Criminal Code 2015.
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