What are regulations on procedures for handling labor discipline in Vietnam? Who has competence to handle labor discipline in Vietnam?

What are regulations on procedures for handling labor discipline in Vietnam? 

Please help me provide the latest procedures for handling labor discipline. Thank you!

Reply. Disciplinary procedures are prescribed in Clause 6 Article 122 of the Labor Code and are specifically guided according to the provisions of Article 70 of Decree 145/2020/ND-CP as follows:

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.

Who has competence to handle labor discipline in Vietnam?

Please ask, according to the provisions of the 2019 Labor Code, what new content must be included in the labor regulations? Are there regulations to determine the authority to handle labor discipline? Hope to receive answers. Thank you.

Reply. According to Clause 2, Article 118 of the 2019 Labor Code, there are regulations on internal labor regulations as follows:

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:

a) Working hours and rest periods;

b) Order at the workplace;

c) Occupational safety and health;

d) Actions against sexual harassment in the workplace;

dd) Protection of the assets and technological and business secrets and intellectual property of the employer;

e) Cases in which reassignment of employees are permitted;

g) Violations against labor regulations and disciplinary measures;

h) Material responsibility;

i) The person having the competence to take disciplinary measures.

Compared to the 2012 Labor Code, the new Labor Code has added a number of new regulations in the labor regulations such as:

- Preventing and combating sexual harassment in the workplace; order and procedures for handling sexual harassment in the workplace;

- In case the employee is temporarily transferred to a job different from the labor contract;

- Person with authority to handle labor discipline.

Thus, the 2019 Labor Code stipulates that labor regulations must stipulate who has the authority to handle labor discipline in Vietnam.

When is labor disciplinary action against employees not allowed in Vietnam?

Let me ask: When is labor disciplinary action against employees not allowed in Vietnam according to the 2019 Labor Code? Thank you very much.

Reply. Article 122 of the Labor Code (Effective January 1, 2021) stipulates:

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.

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

3. 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.

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

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

b) The employee is being held under temporary custody or detention;

c) 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;

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

5. 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.

6. The Government shall provide for the principles and procedures for taking disciplinary measures at work.

Best regards!