Vietnam: What are the regulations on dismissal for disciplinary reasons? What are the procedures for disciplining employees according to the latest regulations?
What is dismissal in Vietnam?
Pursuant to Article 124 of the Labor Code 2019 on disciplinary measures in Vietnam as follows:
"Disciplinary measures
1. Reprimand.
2. Deferment of pay rises for up to 6 months.
3. Demotion.
4. Dismissal."
In addition, according to Article 117 of the Labor Code 2019, labor discipline is as follows:
"Article 117. Labor discipline
Labor discipline comprises provisions in the internal labor regulations on the compliance in respect of time, technology, production and business management that are imposed by the employer and prescribed by law."
Accordingly, dismissal is one of labor disciplinary measures that the employer applies to employees committing violations against labor regulations or the provisions of law.
What are the regulations on dismissal for disciplinary reasons in Vietnam?
According to the provisions of Clause 4, Article 125 of the Labor Code 2019 on dismissal for disciplinary reasons in Vietnam as follows:
"Article 125. 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, 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."
Thus, in your case, the female employee voluntarily takes leave without the consent of the company for 30 days, and the company has sent a notice 2 times to request this employee to return to work, but the employee still fails to return. According to Clause 4, Article 125 of this Code, if the employee fails to go to work for a total period of 05 days in 30 days, your company can take disciplinary measures for dismissal.
What are the procedures for disciplining employees according to the latest regulations in Vietnam?
Pursuant to Article 70 of Decree 145/2020/ND-CP, the procedures for disciplining employees according to the latest regulations in Vietnam as follows:
"Disciplinary procedures
Disciplinary procedures prescribed in Clause 6 Article 122 of the Labor Code are specified below:
1. In case an employee’s violation is discovered when it is committed, the employer shall prepare a violation record and inform the internal employee representative organization of which the employee is a member, the employee’s legal representative if the employee is under 15. In case an employee’s violation is discovered after it is committed, evidence of such violation must be gathered.
2. Within the time limit for disciplinary procedures specified in Clause 1 and Clause 2 Article 123 of the Labor Code, the employer shall hold a disciplinary hearing as follows:
a) At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants prescribed in Point b and Point c Clause 1 Article 122 of the contents, time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. Make sure the participants receive the notification before the hearing takes place;
b) Upon receipt of the employer’s notification, the mandatory participants prescribed in Point b and Point c Clause 1 Article 122 of the Labor Code shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision;
c) The employer shall conduct the disciplinary hearing at the time and location mentioned in Point a and Point b of this Clause. In case any of the mandatory participants mentioned in Point b and Point c Clause 1 Article 122 does not confirm his/her participation or is not present, the employer shall still conduct the hearing.
3. Minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the participants as prescribed in Point b and Point c Clause 1 Article 122 of the Labor Code. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.
4. Within the time limit for disciplinary procedures specified in Clause 1 and Clause 2 Article 123 of the Labor Code, the person having the power to initiate disciplinary procedure shall issue a disciplinary decision and send it to the mandatory participants specified in Point b and Point c Clause 1 Article 122 of the Labor Code."
Thus, the procedures for disciplining employees in Vietnam shall follow the above regulations.
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