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According to the Labor Code 2019, in order to determine the basis for dismissal, the enterprise must first comply with the general grounds for enforcing labor disciplinary measures which include two conditions: (i) the employee has violated the labor disciplinary rules categorized as eligible for dismissal and (ii) the enterprise complies with the regulations on procedures for handling disciplinary dismissal.

The grounds for handling disciplinary violations

The determination of violations of labor disciplinary rules must be based on the internal labor regulations (if the enterprise has any). In the absence of internal regulations, it shall be based on the stipulations in the Labor Contract and legal regulations. However, the internal labor regulations are essential for a company to manage disciplinary measures as the law only provides general rules without specific provisions.

In case the internal labor regulations and the labor contract do not specify disciplinary dismissal, the enterprise shall carry out such measures based on the provisions of law. The enterprise shall enforce dismissal when one of the following occurs:

• The employee commits theft, embezzlement, gambling, intentionally causes injury, or uses prohibited drugs at the workplace.
• The employee discloses business secrets or technological secrets, or infringes upon the intellectual property rights of the enterprise, or causes serious damage or threatens to cause serious damage to properties or business interests, or commits sexual harassment at the workplace as specified in the internal labor regulations.
• The employee is faced with delay in salary increase or dismissal and commits another violation while still facing the disciplinary measure. Recidivism is a case where an employee repeats a violation for which he/she had previously faced punishment but has not yet been discharged from the punishment.
• The employee intentionally quits work for 5 cumulative days within 30 days or 20 cumulative days within 365 days without a valid reason. It is considered to be a legitimate reason for leave when there is a natural disaster, or fire, or sickness of the employee or their relatives certified by a competent medical facility, or other cases specified in the internal labor regulations.

Principles and procedures for disciplinary dismissal which must be followed by enterprises:

• The enterprise must prove the fault of the employee.
• There must be the participation of a representative organization of employees at the unit where the employee is facing disciplinary charges.
• The employee must be present and have the right to defend himself, consult a lawyer or a representative organization of the employees to defend. In case the person is under 15 years old, his/her/their legal representative must be present.
• The handling of the disciplinary proceedings must be recorded in writing.
• Enterprises shall not enforce multiple measures for a single violation.
• When an employee concurrently commits multiple violations, only the highest form of disciplinary measure corresponding to the most serious violation shall be applied.
• Disciplinary proceedings shall not be applied to employees in the following period: sick leave, convalescence, resignation with the consent of the enterprise, being held in custody or temporary detention, awaiting results of competent authorities to investigate, verify and draw conclusions for violations, pregnant female workers, taking maternity leave, raising children under 12 months old.
• Disciplinary measures shall not be taken against employees who violate disciplinary rules while suffering from mental illness or any other disease that causes loss of awareness or ability to control their behavior.
• It is forbidden to infringe upon the health, honor, life, reputation and dignity of employees.
• Enterprises shall not impose fines or salary cuts instead of labor disciplinary measures.
• Enterprises shall not apply disciplinary measures to employees who commit violations which are not specified in the internal labor regulations or are not agreed upon in the signed labor contracts or are not provided for by the labor law.

While dismissing an employee as a part of disciplinary measures, enterprises should pay attention to and fully comply with the above principles. If such principles are not met, the disciplinary action will be considered illegal and may be annulled by the competent state agency. In addition, enterprises may be administratively sanctioned and forced to compensate employees if these principles are violated.

Enterprises need to comply with the following order of procedures:

• Step 1: When it is found out that an employee violated a disciplinary measure, the enterprise shall make a record of the violation and notify the grassroots employee representative organization of which such employee is a member. In case the enterprise finds out the violation of disciplinary measure after it has occurred, it shall collect evidence to prove such violation.
• Step 2: In case of conducting a meeting to handle disciplinary measures, the enterprise shall notify the agenda, time and location of the meeting, the name of the employee and the violation to the grassroots trade union or the employee’s organization at the enterprise, the employee who committed the violation and the representative of the employee at least 5 working days in advance.
• Step 3: The enterprise shall hold a meeting to handle disciplinary measures. In case one of the members who must attend the meeting does not confirm attendance or is absent, the meeting shall still be conducted. The agenda of the meeting must be recorded in minutes, approved before the end of the meeting and signed by the participants. In case a participant does not sign the minutes, the person recording shall clearly state his/her full name and reason for not signing (if any) to confirm the minutes of the meeting.
• Step 4: Within a valid period, the enterprise shall issue the decision on the dismissal and send it to all participants of the meeting.

It is common that a dismissal may generate disputes. The employee may disagree with the decision and file a case at the court or labor agency. This could be time-consuming for the enterprise or even cause problems if there are grounds to believe that the dismissal was issued in contravention to the law. The labor agency or the court shall review the dispute comprehensively on the basis of the evidence for the dismissal and the related procedures. Therefore, enterprises should be careful when issuing a dismissal decision to avoid such future risks.

Time of writing: 17 August 2021

The article is based on the current law at the time of recording as above and may no longer be relevant at the time readers access this article due to changes in applicable law and specific cases that the reader wants to apply. Therefore, the article is for reference only.

Source: plf.vn