WHEN IS THE DISMISSAL DISCIPLINE APPLIED? (PART 1)
Dismissal – one of the forms of disciplinary action that directly affects the existence of the labor relationship, and the application of this form is the basis for arising of actual labor contract disputes. To limit the situation that the employer takes advantage of the position to apply the most severe discipline against the employee arbitrarily, The 2019 Labor Code (“Labour Code”) specifically stipulates the cases in which the employer is entitled to apply the dismissal discipline to the employee. In this article, TNTP will analyze one of the cases in detail so that the enterprise can legally use the legal form of dismissal discipline.
1. The concept of disciplining employees for dismissal
Disciplinary dismissal is the highest form of labor discipline that the law allows employers to apply to employees who commit disciplinary violations. Accordingly, the legal consequence of using this form is that the employee’s labor contract is terminated means the labor relationship is also terminated.
2. Basis for applying the form of labor discipline and dismissal to employees
According to the provisions of Article 125 of the Labor Code, the disciplinary form of dismissal is used by the employer in the following cases:
– The employee who commits acts of theft, embezzlement, gambling, intentionally causing injury, or using drugs at work;
– The employee has acts of disclosing business or technology secrets, infringing upon the employer’s intellectual property rights, committing acts of causing serious damage or threatening to cause severe damage. About the property, the employer’s interests, or sexual harassment in the workplace as specified in the labor regulations;
– The employee is disciplined for prolonging the time limit for a salary increase or dismissal but re-offends while the discipline has not been removed. Recidivism is a case where an employee repeats a violation that has been disciplined but has not yet been disciplined as prescribed in Article 126 of this Code;
– The employee voluntarily quits work for five cumulative days within 30 days or 20 cumulative days within 365 days from the first day of voluntarily leaving without a valid reason.
When there is evidence that an employee commits one of the above acts at the workplace, the employer only needs to base on the employee’s behavior to dismiss the employee without considering the damage caused by such an act. Because these are acts that seriously affect the order in the business. In addition, the workplace, in this case, is understood as any place where the employee works as agreed upon or assigned by the employer.
2.1. Employees commit acts of theft, embezzlement, gambling, intentionally causing injury, using drugs at work
Acts of theft:
When an employee acts stealthily and secretly to evade the detection of the property manager to appropriate property, which may be the property of the employer, the property of other employees, the property of the client, or any other property. If this behavior is carried out at the workplace, the employer can apply the dismissal discipline to the employee. The stealthy, concealed element of this behavior is a review request only, applicable to property owners or managers, and not required for others.
Moreover, the Labor Code and guiding documents do not have specific regulations on property theft, so employers need to describe this behavior in detail in the Labor Regulations. Employers can stipulate that employees will be disciplined for dismissal when employees commit acts of theft at work without causing damage.
Acts of embezzlement:
According to Article 353 of the 2015 Penal Code, amended and supplemented in 2017 (“Penal Code”), embezzlement of property is an act performed by a person with a position and power in the form of abusing his position or authority. Appropriate property that they are responsible for managing. Similarly, embezzlement in the Labor Code can be understood as acts by employees who are responsible for assets, maybe who are assigned the task of directly managing assets such as treasurer, storekeeper, accountant, the person assigned to transport assets of an enterprise, who abuses their position and powers to appropriate the employer’s property that the employee has responsibility for the management.
In addition, some subjects are not assigned the task of directly managing assets but are responsible for deciding on revenue and expenditure, import and export, purchase and sale, and exchange of assets such as company directors, Head of Department,… For embezzlement cases with accomplices, accomplices may be people without positions and powers. Therefore, the employer needs to detail this issue in the labor regulations.
Current law does not stipulate a minimum or maximum asset value to be subject to dismissal discipline for acts of “theft” or “embezzlement” of property. Therefore, the employer should stipulate this issue in the labor regulations that only the employee’s acts of “theft” and “embezzlement” are sufficient grounds to apply the dismissal discipline, regardless of the property’s value.
Acts of gambling:
Gambling is participating in an illegally organized game where the win (or loss) is paid in cash or kind without a competent state agency or despite the approval of a state agency. Authorized authority but does not comply with the provisions of the license granted.
The traditional forms of gambling commonly seen are card games, lottery games, football betting, horse racing betting, car racing, etc. In addition, nowadays, there is also the appearance of online gambling acts. Such as football betting over the internet and gambling under the guise of online game applications that exchange rewards from virtual money to real money and vice versa, …
The law also does not stipulate how much each gamble is; the manager will be disciplined and fired. Accordingly, the employer can decide in the labor regulations that only the manager’s “gambling” action is sufficient basis to apply the dismissal discipline and does not need to consider the factors of value or form.
Intentionally causing injury, using drugs:
The employer may apply the disciplinary form of dismissal when the employee intentionally infringes on the body and health of others at the workplace or while the employee works at the labor unit.
Using drugs at work is using substances carried out by actions such as injecting, smoking, and injecting, etc., at the workplace. Drugs banned from use in the Government’s Decree No. 73/2018/ND-CP stipulating the lists of narcotic substances and precursors, as amended and supplemented by Decree No. 60/2020/ND-CP are opium, morphine, heroin, marijuana, and cannabis products,…
However, there are cases where employees do not use drugs at work but have limited cognitive ability and behavior control during working time and at work due to previous drug use. Can the employer handle dismissing employees who use drugs before working but have limited awareness and behavior control during working hours and at the workplace? It is the same in terms of consequences for the employer when the employee uses drugs at work and the behavior of the employee who does not use drugs at work but has limited cognitive ability and behavior control. Therefore, we think it is completely reasonable for the employer to prescribe the disciplinary handling of fired employees if such behavior occurs.
The above is the first basis the employer can apply to handle labor discipline in the form of dismissal for the employer. Through this article, we hope to support enterprises in applying using a form of dismissal and also to help employees ensure their rights and interests so that they are not dismissed arbitrarily.
TNTP & Associate International Law Firm