05/05/2023 14:56

What are the cases where employers are allowed to dismiss employees in Vietnam?

What are the cases where employers are allowed to dismiss employees in Vietnam?

"The director of my company always threatens to fire the employees if they do not work properly. Therefore, I would like to know about the cases where employers are allowed to dismiss employees in Vietnam"_ Tuan Kiet (Hue)

Hi, for your request, Lawnet would like to answer you as follows:

1. What are the cases where employers are allowed to dismiss employees in Vietnam?

According to the provisions of Article 125 of the Labor Code 2019, an employer may dismiss an employee for disciplinary reasons in the following circumstances:

- 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.

However, it is only legal for an enterprise to fire an employee when two conditions are met:

- The employee commits one of the acts specified in Article 125 of the Labor Code 2019 above.

- Disciplining employees in accordance with the principles, orders, and procedures according to the labor law.

2. Principles and procedures for taking disciplinary measures at work in Vietnam

According to the provisions of Article 122 of the Labor Code 2019, the principles and procedures for taking disciplinary measures at work include:

-Disciplinary measures against an employee shall be taken in accordance with the following regulations:

+ The employer is able to prove the employee’s fault;

+ The process is participated in by the representative organization of employees to which the employee is a member;

+ 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;

+ The disciplinary process is recorded in writing.

- It is prohibited to impose more than one disciplinary measure for one violation of internal labor regulations.

- 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.

- No disciplinary measure shall be taken against an employee during the period when:

+ The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;

+ The employee is being held under temporary custody or detention;

+ 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;

+ The employee is pregnant, on maternal leave or raising a child under 12 months of age.

- 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.

3. Disciplinary procedures

Disciplinary procedures are specified in Article 70 of Decree 145/2020/ND-CP as follows:

- 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.

- 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:

+ 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;

+ 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 n agreement cannot be reached, the employer shall make the final decision;

+ 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.

- 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.

- 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.

Nguyen Thi Sang
148


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