Can the Company Dismiss an Employee for Defaming or Badmouthing Their Supervisor Behind Their Back?

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According to Article 126 of the Labor Code 2012, the form of disciplinary action of dismissal can be applied by the employer in the following cases:

1. The employee engages in acts of theft, embezzlement, gambling, intentional injury, drug use within the workplace, disclosing business secrets, technological secrets, infringing upon the employer's intellectual property rights, causing serious damage or threatening to cause particularly serious damage to the property and interests of the employer.

2. The employee is disciplined with extended wage raise periods and repeatedly offends while the previous disciplinary action has not been cleared, or is disciplined with demotion and repeatedly offends.

Repeated offense is when the employee repeats the offense that was previously disciplined and has not been cleared under Article 127 of this Code;

3. The employee voluntarily leaves work for a cumulative duration of 5 days in one month or 20 days in one year without a legitimate reason.

Legitimate reasons include: natural disasters, fires, illness of oneself or a family member with certification from a competent medical facility, and other cases as prescribed in the labor regulations.

Therefore, according to the above regulation, if a boss finds out that they are being criticized or badmouthed by an employee, the boss does not have the right to dismiss that employee, as badmouthing the boss is not one of the cases where the employer can apply the form of disciplinary dismissal to the employee.

In such a case, if a boss dismisses an employee for badmouthing, it is considered that the company has unlawfully unilaterally terminated the labor contract. The company must fulfill the following obligations:

1. Must reinstate the employee to their previous job as per the labor contract and must pay the salary, social insurance, and health insurance for the days the employee was not allowed to work plus at least 2 months' salary as per the labor contract.

2. If the employee does not want to continue working, besides the compensation specified in Item 1 of this Article, the employer must pay severance allowance as stipulated in Article 48 of this Code.

3. If the employer does not want to reinstate the employee and the employee agrees, besides the compensation specified in Item 1 of this Article and the severance allowance as prescribed in Article 48 of this Code, both parties agree on additional compensation but at least equivalent to 2 months' salary to terminate the labor contract.

4. If the position or job specified in the labor contract is no longer available and the employee still wants to work, besides the compensation specified in Item 1 of this Article, both parties negotiate to amend, supplement the labor contract.

5. If there is a violation of the notification period, the employer must compensate the employee an amount equivalent to the employee's salary for the days without prior notice.

Although according to legal regulations, the act of badmouthing the boss does not result in the disciplinary action of dismissal, however, if the company’s labor regulation stipulates a disciplinary action for this behavior, the person committing the violation will be disciplined according to the regulations.

Note: If the company’s labor regulations prohibit badmouthing others, this behavior is only considered a normal violation, not one of the cases subject to dismissal under Article 126 of the Labor Code 2012.

Nevertheless, badmouthing someone behind their back is improper behavior and is prohibited by law. Depending on the severity of the act, the violator may be subjected to corresponding forms of discipline. Specifically::

According to Point a, Item 1, Article 5 of Decree 167/2013/ND-CP, a person who badmouths others can be warned or fined from 100,000 VND to 300,000 VND, specifically:

Article 5. Violations of regulations on public order

1. Warning or fine from 100,000 VND to 300,000 VND for any of the following acts:

a) Using coarse, provocative language, teasing or humiliating others.

...

In addition, according to Article 584 of the Civil Code 2015, these individuals must also compensate for damage to the person being badmouthed if it infringes on their honor, dignity, or reputation. Specifically, any person who infringes on the life, health, honor, dignity, reputation, property, or other legitimate rights and interests of another person causing damage must compensate.

More seriously, those who badmouth others can be subject to criminal liability for the Crime of humiliating others under Article 155 of the Criminal Code 2015, with the highest penalty being up to 5 years in prison.

Nguyen Trinh

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