CONSIDERATIONS FOR EMPLOYERS WHEN APPLYING THE LABOR DISCIPLINARY PROCEDURE
Building on the issues relating to labor discipline discussed in our previous articles, in this article, TNTP will analyze the key considerations regarding the forms of discipline and the procedures that employers may apply to employees, as well as important notes when conducting disciplinary actions in the workplace.
1. Forms of discipline that employers may apply to employees
According to Article 124 of the 2019 Labor Code, an employer may apply one of four forms of labor disciplinary action against an employee who violates the internal regulations. Specifically, these forms include: reprimand, deferment of pay rise, demotion, and dismissal.
Among them, reprimand is the mildest form of discipline, generally applied when the employee commits a first-time or minor violation. For more serious violations, the employee may be subject to deferment of a pay rise for up to 06 months. This measure serves as a deterrent while also providing the employee with an opportunity to correct mistakes and improve.
For employees holding managerial or leadership positions, if their violations seriously impact on the organization’s operations or reputation, they may be subject to demotion.
The most severe form of discipline is dismissal, which is specifically provided under Article 125 of the 2019 Labor Code. Accordingly, dismissal shall only be applied in cases of particularly serious violations such as theft, embezzlement, gambling, deliberate infliction of injuries, use of drugs at the workplace, disclosure of technological or business secrets, infringement of the employer’s intellectual property rights of the employer, 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.
An employee may also be dismissed if 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 of absence without acceptable excuses, after having been disciplined by deferment of pay rise for up to 6 months or demotion.
2. Procedure for conducting labor disciplinary action against employees
According to Article 70 of Decree No. 145/2020/ND-CP, the procedure for handling labor discipline must strictly comply with the prescribed steps and legal order to ensure the protection of employees’ rights and transparency in labor relations.
– As the first step, the employer is required to clearly determine the employee’s act of violation
+ In case an employee’s violation is discovered when it is committed, the employer shall prepare a violation record and inform the relevant parties.
+ In case an employee’s violation is discovered after it is committed, evidence of such violation must be gathered. It should also be noted that the time limit for taking disciplinary measures against a violation is 06 months, or 12 months for violations directly relating to finance, assets and disclosure of technological or business secrets, and may be extended by an additional 60 days in certain cases.
– The second step is that the employer must hold a labor disciplinary meeting, bearing in mind the statute of limitations under Article 123 of the 2019 Labor Code is 6 months from the date of the violation, or 12 months if the violation relates to finance, assets, disclosure of technological or business secrets, and in certain cases, this period may be extended by an additional 60 days. In particular, employers should note that disciplinary action shall not be taken against employees who are on maternity leave, illness, under temporary custody, or who have lost civil capacity.
+ Before the hearing, at least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants of the contents, time, and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. The hearing may only be conducted when all required participants are present, or when there is a written confirmation of non-attendance from those who were notified. The hearing minutes must be fully recorded, signed by the participants, or state the reasons in case anyone refuses to sign.
+ After the hearing is concluded, the competent person, either the individual who entered into the labor contract or the person expressly designated in the company’s internal regulations, shall issue the disciplinary decision within the statutory time limit.
– The third step is that the employer must publicly announce the disciplinary decision, which must be duly communicated to the employee. In case the employee is under 15 years old, the decision shall be sent to his/her representative, or to the employee representative organization at the workplace
This entire procedure is not only intended to ensure the legality of handling violations but also serves as a mechanism to protect the lawful rights and interests of employees in the workplace.
3. Mistakes that employers may make when conducting labor disciplinary action
According to Article 19 of Decree 12/2022/ND-CP, labor disciplinary actions must strictly comply with the prescribed procedures, formalities, and time limits under the law. In case of violations, the employer may be subject to administrative penalties. Therefore, employers need to pay attention to the following points:
– According to Article 19.2.dd of Decree 12/2020/ND-CP, failing to follow processes, procedures, and time limits set out in law may result in a fine of VND 5 million to VND 10 million and require the reinstatement of the employee and full payment of salary for the period of absence.
– According to Article 19.3 of Decree 12/2020/ND-CP, in cases of insulting or assaulting an employee, the penalty may range from VND 20 million to VND 40 million, along with the obligation to be compelled to issue public apology and fully pay treatment costs.
– Also, Article 19.3 of this Decree clearly stipulates that the employer is not allowed to apply monetary fines or deduct the employee’s salary instead of disciplinary measures set out in Section 1 above. In case of violation, the employer shall be obliged to refund any amounts collected and pay the employee’s salary.
– Furthermore, the employer must note that disciplinary action cannot be taken if the misconduct is not listed in the company’s regulations, nor can multiple disciplinary measures be applied for a single violation.
We hope that this article on key considerations for employers when implementing labor disciplinary procedures, compiled by TNTP, will provide useful reference information to our readers. For any questions or clarifications, please contact TNTP for detailed assistance.
Sincerely,
TNTP and Associates International Law Firm
+84944892906
