Pursuant to the provisions of the Labor Code 2019, dismissal is one of the highest and most serious forms of disciplinary measures applied by the Employer for the Employees. Therefore, the disciplinary process of dismissal is strictly regulated to best protect employees as well as bring fairness, equality and transparency to all laborers in the workplace.
I. Cases in which dismissal discipline is imposed
Pursuant to Article 125, Labor code 2019, cases in which dismissal discipline is imposed:
“1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.
4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses”.
Cases regarded as acceptable excuse include natural disasters, fires, being sick or relatives being sick certified by competent medical examination and treatment establishments and other cases specified in labor regulations.
II. Cases in which dismissal discipline cannot be imposed
Pursuant to Clause 4 and 5, Article 122, Labor code 2019, dismissal discipline shall not 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 held in 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 (The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace; The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations);
d) The employee is pregnant, on maternal leave or raising a child under 12 months of age.
… employee 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”.
III. Dismissal procedure
Because dismissal is one of the disciplinary measures, the procedure for dismissing an employee is similar to the procedure for disciplining employees. Pursuant to Article 70, Decree 145/2020/ND-CP, the procedure of dismissal is carried out as follows:
At first, in case an employee’s violation is exposed when it is committed, the employer shall make a violation record and notify the internal employee representative organization, the employee’s legal representative (if the employee is under 15). When an employee’s violation is discovered after it is committed, evidences of such violation must be gathered.
Secondly, within the disciplinary period, 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 (the representative organization of employees; and 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) 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 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 an agreement cannot be reached, the employer shall make the final decision;
c) The employer shall conduct the disciplinary hearing at the time and location agreed upon. In case any of the mandatory participants do not confirm his/her participation or is not present, the employer shall still conduct the hearing”.
Thirdly, minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the mandatory participants. 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.
Hence, one of the conditions for conducting the meeting is the full participation of the parties including employers, employees and representatives from the internal representative organization of employees. Nonetheless, if employees and representatives do not attend, and no agreement is reached after then, the meeting can still take place.
IV. Time limit for taking dismissal measure
In accordance with prevailing law (Article 123, Labor code 2019), in principles, time limit for taking disciplinary measure (including dismissal measure) is 6 months. However, for specific cases including violations related to property, finance, technology secrets, and business secrets, the time limit in this situation was 12 months.
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