EMPLOYEE DISMISSAL AND NECESSARY CONDITIONS

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Dismissal is the heaviest form of disciplinary action that.has a significant impact on employees in particular and on society in general. Dismissal is also the form in which the law allows.employer to unilaterally terminate an.employment relationship when the employee commits a serious violation of labor discipline. LawPlus would like to send to you the necessary regulations on employee dismissal so that customers can understand clearly. EMPLOYEE DISMISSAL AND NECESSARY CONDITIONS                     

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1. Applicable cases in dismissal discipline: 

Under Article 125 of The Viet Nam Labour Code 2019, an employer may apply.dismissal as a disciplinary measure in several circumstances. Accordingly, employers will dismiss employees if they commit one of those acts:

  • Committing an act of theft, embezzlement, gambling, intentionally causing injury, or using illicit drugs at the workplace.
  • ​Disclosing technological or business secrets.
  • Infringing the intellectual property rights of the employer.
  • Committing an act of serious harm or threatening to commit an act of serious harm to the assets or interests of the employer.
  • Committing sexual harassment at the workplace as defined in the internal work regulations.
  • ​Subject to deferment of a wage increase or demotion for disciplinary reasons reoffends before their period of labour discipline elapses.
  • Absence at work for 05 cumulative days within a period of 30 days, or for 20 cumulative days within a period of 365 days, counted from the first day of absence without a justified reason.

However, the employers have to comply with the principles, sequence, and procedures for handling labour discipline:

  • Demonstrating the culpability of the worker.
  • There must be the participation of the worker’s representative.organization at the grassroots level of which the disciplined worker is a member.
  • The workers must be physically present and have the right to defend themselves, or to have a lawyer or worker’s representative organization assist in their defense; In cases where the worker is less.than 15 years of age, the worker’s legal representative must be present.
  • Recording in writing any settlement of labour disciplinary regulations.
Notice:EMPLOYEE DISMISSAL AND NECESSARY CONDITIONS
  • It is prohibitive to impose more than one disciplinary.measure for one violation of labour disciplinary regulations; ​When a worker simultaneously commits multiple violations of labour disciplinary regulations, they will only be subject to the highest form of disciplinary measure corresponding to the most serious violation.
  • ​No disciplinary measure shall be taken against a worker.following periods: is taking leave on account of illness or convalescence, or any type of leave with the employer’s consent; is being held temporarily in custody or detention; is awaiting the verification and conclusion of an authorized agency regarding a violation; the female worker is pregnant, or the worker is on parental leave or is caring for children less than 12 months old.
  • ​No disciplinary measure shall be taken against a worker who violates labour disciplinary regulations when suffering from mental illness or another disease that results in the worker losing self-awareness or the ability to control their actions.

Moreover, strictly prohibited acts when applying labour disciplinary measures:

  • Infringing the health, honor, life, prestige or human dignity of the worker.
  • ​Applying fines or wage deductions in lieu of a disciplinary measure.
  • Applying a disciplinary measures against a worker for having committed a violation that is not stipulated in the internal work regulations, the signed employment contract or labour law

2. Employee dismissal procedure:

a.Order and procedures of employee dismissal:

According to Article 22 of The Labor Code 2019 and Article 70 of The Decree of No.145/2020/ND-CP:

Step 1: Making records of violations and examining evidencesEMPLOYEE DISMISSAL AND NECESSARY CONDITIONS

Upon detecting that a worker is committing a violation of labour disciplinary regulations, the employer shall make a written record and notify the WRO at the grassroots level that represents the worker, the legal representative of an under-18 worker. In case where the employer detects the violation after it has been committed, s/he shall collect evidence proving the worker’s faults.

Step 2: Holding a meeting for settling the violation: 

Within the statutory limitations for settling violations of labour disciplinary regulations, the employer shall hold a meeting for settling the violation as follows:

  • The employer shall notify of.the contents, time, and place of the.for settling the violation, full name of the violating worker, act of violation to all the required participants at.least 05 working days before the meeting date, ensuring that the employers give enough information of the meeting for the participants.
  • Upon receiving the employer’s notice: the required participants shall.send their confirmation on participation in the meeting to the employer. If one of the required participants cannot join the meeting at the notified time or place, the employer and worker shall reach an agreement on changing the time or place of the meeting. If both parties fail to reach an agreement, the employer shall decide the time and place;
  • The employer shall hold the meeting for settling.violation of labour disciplinary regulations at the notified time and place under Points a and b of this Clause. If one of the required participants does not confirm to join the meeting or s/he is absent, the employer shall keep holding the meeting.

b. Form of discipline: EMPLOYEE DISMISSAL AND NECESSARY CONDITIONS

  • Before the meeting for settling violations of labour disciplinary regulations is.closed, contents of the meeting shall be recorded in minutes, agreed and signed by all participants.
  • In case one of the participants refuses to sign the minutes, his/her full name and the reasons for the refusal (if any) must be clearly stated in the minutes.

c. Statutory limitations for settling violations of disciplinary regulations:

  • ​The statutory limitation for settling violations of labour disciplinary.regulations is 06 months from the date when the violation occurs, and 12 months for violations directly related to finances, assets, or disclosure of technological or business secrets.
  • ​Upon the expiry of the period of the worker who (1) is taking leave.on account of illness or convalescence, or any type of leave with the employer’s consent; (2) is being.held temporarily in custody or detention; (3) is awaiting the verification and conclusion of an authorized agency regarding a violation; (4) the female worker is pregnant, or the worker is on parental.leave or is caring for children less than 12 months old; if the statutory limitation has been.expired or has less than.60 days remaining, the statutory limitation may.be extended for up to 60 days from the expiry date stated above.
  • ​Employers must issue the decision.on settling violations of the labour disciplinary regulations within the time limits.

3. Paying salaries and insurance books for employees:

Employers will still pay wages for dismissed employees for the worked days and insurance book like other cases of termination of labor contracts. Whereby:

  • Within 14 working days from the termination of the employment contract, the two parties are responsible for making all payments related to the rights and interests of each party, (in some cases, this time limit may be extended for up to 30 days).
  • The employer is not responsible for paying severance allowance to workers who are.disciplined in the form of dismissal (Article 34.8 of The Viet Nam Labour Code 2019). At the same time, an employee who is.disciplined in the form of dismissal can not receive severance allowance because they are not eligible for this allowance.
  • Enterprises must complete the procedures for closing the social insurance book and returning the certificates and another sheet for employees if they already kept them.   (Ảnh minh hoạ)

4. Unlawful dismissal

If the dismissal is considered illegal, the enterprise must restore employees’ rights and interests which are.violated due to his/her labor discipline handling decision. Therefore, the consequences of illegal dismissal can be.generalized into the following cases:

Case 1: The enterprises have to reinstate the workers in accordance with the original employment contract and compensate for them

​Required to reinstate the worker in accordance with the original employment contract; to pay wages, social insurance, health insurance, and unemployment insurance for the period during which the worker was not allowed to work; and to pay an additional monetary amount to the worker equivalent to at least 2 months’ wages as stipulated in the employment contract.

Case 2: ​In cases where the workers do not wish to return to.work so the enterprise just has to compensate for them. The compensation stipulated in line with relevant national technical standards and the law.

Particularly, the employer must pay the severance allowance to terminate the employment contract.

Case 3: ​In cases where the employer does not wish to reinstate the worker and the worker agrees.

In addition to the compensation.paid by the employer and the severance allowance, the two parties shall negotiate additional compensation equivalent to at least two months’ wages as stipulated in the employment contract in order to terminate the employment contract.

Case 4: In cases where the position or job specified in the employment contract is no longer available but the worker wishes to continue working

Both parties shall reach an agreement to amend and supplement the employment contract. The enterprise must still compensate the worker.

In the circumstance that the employees believe that the employer’s.dismissal is unjustifiable and illegal, they can do one of the following ways to ensure their interests:

First way: Complaints about the dismissal decision

  • The first-time appeal: Requesting the employer to cancel the dismissal decision.
  • The second-time appeal: Go to the Chief Inspector of the Department.of Labor – Invalids and Social Affairs, where the employer is. headquartered if the first complaint is not initially resolved or disagrees with the settlement.

Second way: Conciliation through a labor mediator

With dismissal discipline dispute, the employee can choose to use this method or not.

Third way: Request the Labor Arbitration Council to solve

Fourth way: File a Lawsuit in Court

The employee has the right to go directly to the District-level People’s Court where the enterprise is.headquartered for disputes over labor discipline in the form of dismissal. Particularly, if businesses find out that their dismissal is wrong, they need to fix it immediately. In case it cannot be.overcome, the enterprise needs to cancel the decision on dismissal, apologize and compensate workers.

5. Dispute settlement of dismissal discipline

When there is a dismissal dispute, both parties can use several different methods of resolution, such as negotiation, conciliation, and settlement in Court. In which, negotiation is an internal labor dispute.resolution, conducted between two disputing parties without third-party participation. After the negotiation fails, the parties can proceed with.mediation which is chaired by the Mediator. Settling labor disputes in court is the last method if all other methods have failed.

The above is Lawplus’s analysis of the dismissal discipline.with the desire to help.enterprises and employees better understand the provisions of the law to apply to the practical process. For detailed advice, please contact us at hotline +84 2862 779 399, +84 3939 30 522 or email info@lawplus.vn.

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