If employees do not sign minutes of the disciplinary hearing in Vietnam, what should be done?

If employees do not sign minutes of the disciplinary hearing in Vietnam, what should be done?

Article 70 of Decree 145/2020/ND-CP stipulates disciplinary procedures as follows:

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 n 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.

According to Clause 1, Article 122 of the Labor Code 2019, principles and procedures for taking disciplinary measures at work is prescribed as follows:

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.

Thus, according to the above regulations in Vietnam, the employee subject to labor discipline must sign the minutes of the disciplinary hearing. If employee H of your company has not signed the minutes of the disciplinary hearing, the person recording the meeting shall clearly state the full name of employee H, the reason for not signing (if any) in the content of the minutes. 

This is still the basis for labor discipline and your company can still take disciplinary action against H.

How much is fine for failing to follow processes, procedures when implementing disciplinary measures at work in Vietnam?

Pursuant to Clause 2, Article 19 of Decree 12/2022/ND-CP stipulating violations against regulations on labour discipline and material responsibility as follows:

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:

a) Failing to apply written internal labour regulations when employing 10 employees or more;

b) Failing to follow procedures for registration of internal labour regulations as prescribed by law;

c) Failing to consult with the internal representative organization of employees (if any) before issuing or revising the internal labour regulations;

d) Applying the internal labour regulations which have not been yet in effect or have become null and void;

dd) Failing to follow processes, procedures and time limits set out in law when implementing disciplinary measures at work or paying compensation for damage;

e) Suspending employees from work for a duration exceeding the maximum suspension period prescribed by law;

g) Before suspending employees from work, failing to consult with the internal representative organization of employees to which the employee is a member.

In Clause 1, Article 6 of Decree 12/2022/ND-CP stipulating the fine level:

1. The fines for administrative violations prescribed in Chapter II, Chapter III and Chapter IV of this Decree shall be imposed upon violating individuals, except the fines in Clauses 1, 2, 3, 5 Article 7, Clauses 3, 4, 6 Article 13, Clause 2 Article 25, Clause 1 Article 26, Clauses 1, 5, 6, 7 Article 27, Clause 8 Article 39, Clause 5 Article 41, Clauses 1 through 12 Article 42, Clauses 1 through 8 Article 43, Clauses 1 through 6 Article 45, Clause 3 Article 46 of this Decree. The fine imposed upon an organization is twice as much as that imposed upon an individual for committing the same administrative violation.

Therefore, if your company fails to follow processes, procedures when implementing disciplinary measures at work as prescribed by law in Vietnam, it will be fined from VND 10,000,000 to VND 20,000,000.

What do form of dismissal for disciplinary measures in Vietnam comprise? 

According to Article 124 of the 2019 Labor Code, disciplinary measures are as follows:

1. Reprimand.

2. Deferment of pay rise for up to 6 months.

3. Demotion.

4. Dismissal.

The above are the forms of disciplinary measures in accordance with the law in Vietnam.

Best Regards!