Hanoi-Vietnam: 08 cases where the employer illeghally takes disciplinary actions against employees

1. Dismissal of employees not falling under Article 126 of the Labor Code 2012

Under Article 126 of the Labor Code 2012, the dismissal may be applied by an employer as a form of discipline in the following cases:

- An employee commits an act of theft, embezzlement, gambling, intentional infliction of injury, use of drugs inside the workplace, disclosure of technological or business secrets or infringement of intellectual property rights of the employer, or acts which cause serious damage or threaten to cause serious damage to the assets or interests of the employer;

- An employee who has been subject to the disciplinary measure of prolonging the wage rise period commits recidivism when the disciplinary record has not yet been written off or an employee who has been subject to the disciplinary measure of removal from office commits recidivism;

- An employee has been absent from work without permission for a total of 5 working days within 1 month or 20 days within 1 year without plausible reasons.

Conversely, under Clause 3 of Article 128 of the Labor Code 2012,  it is prohibited to discipline an employee who has committed a violation that is not defined in the internal working regulations. Therefore, when preparing the labor regulations, the employer must ensure their legality, and the content of the labor regulations must include the provisions on violations subject to disciplinary action and the corresponding disciplinary measures.

2. Application of multiple disciplinary measures for a single violation

Currently, the Labor Code 2012 only allows the application of one disciplinary measure for a single disciplinary violation as stipulated in Clause 2, Article 123. In cases where there are multiple disciplinary violations, only the highest disciplinary measure for the most serious violation is applied.

Additionally, to ensure the rights of employees when they do not have or have limited ability to participate in the disciplinary process, the labor code does not allow employers to take disciplinary measures in the following cases:

- Taking sickness or convalescence leave or a leave with the employer’s consent;

- Kept in custody or temporary detention;

- Waiting for results of verification and conclusion of a competent agency for acts of violation specified in Clause 1, Article 126 of this Code;

- A female employee and pregnant or on maternity leave; rearing a child under 12 months of age.

3. Disciplinary actions taken without proper authority

Only the legal representative of the employer in Vietnam has the authority to handle labor discipline, as specified in Point a, Clause 1, Article 123 of the Labor Code 2012, and guided in Clause 4, Article 30 of Decree 05/2015/ND-CP.

The individual authorized to handle labor discipline is the employer (i.e., the person authorized to sign the employment contract). The person authorized to sign the employment contract only has the authority to handle labor discipline in the form of reprimand.

4. No participation from the labor collective representative at the facility

A labor discipline meeting is conducted when all notified components are present. If the employer has sent written notifications three times, but one of the components is still absent, the employer can proceed with the labor disciplinary meeting.

This directive is based on the regulation in Article 12 of Circular 47/2015/TT-BLDTBXH.

Illustrative Image (Source: Internet)

5. Labor discipline exceeding 06 months

The statute of limitations for labor discipline is a maximum of 06 months from the date the violation occurs; if the violation is directly related to finance, assets, disclosure of technological secrets, or business secrets of the employer, the statute of limitations is a maximum of 12 months.

employers are only allowed to discipline employees within the statute of limitations. If the statute of limitations has expired, no disciplinary action may be taken against the employee.

6. employers have the right to suspend employees during disciplinary proceedings

The Labor Code permits employers to temporarily suspend employees from work when the violation involves complex details, and if it is deemed that the employee's continued presence would affect the verification process. However, the temporary suspension of work can only be implemented after consulting the representative organization of the labor collective at the facility. This is specifically provided in Clause 1, Article 129 of the Labor Code 2012.

7. Failure to address employee's complaints

Article 132 of the Labor Code 2012 stipulates that employees who are disciplined and feel it is unjust have the right to lodge a complaint with the employer or with the competent state agency that resolves labor disputes. Therefore, upon receiving a complaint from an employee, employers should accept and resolve it appropriately to avoid employees filing lawsuits in court, leading to time-consuming and expensive legal proceedings.

8. Failure to settle rights of dismissed employees

When an employee is subjected to dismissal, it means the termination of the employment contract, resulting in job loss and impact on their income. Therefore, employers dismissing employees must fulfill responsibilities according to Article 47 of the Labor Code 2012, such as paying all amounts related to the employee's benefits and returning the social insurance book, etc.

Employers need to be mindful of the aforementioned details to stabilize the working environment and ensure that their production and business operations are not disrupted by internal activities.

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