WHEN IS THE DISMISSAL DISCIPLINE APPLIED (PART 2)
Besides committing an act of theft, embezzlement, gambling, deliberate infliction of injury, or use of drugs at the workplace is mentioned in Part 1, in this writing, we will consider the second basis that an employee (“Employee”) can be dismissed for disciplinary reasons when commits discloses technological or business secrets or infringing the intellectual property rights of the employer (“Employer”).
2. Basis for applying the form of labor discipline and dismissal to the Employee
2.2 The Employee discloses technological or trade secrets or infringes the intellectual property rights of the Employer
The employer only needs to provide evidence that the employee has engaged in one of the mentioned behaviors in the workplace (where the workplace is any location where the employee works as agreed upon or assigned by the employer) to proceed with termination, without having to rely on the actual consequences or damages caused by such behavior.
The act of disclosing a trade secret:
The 2005 Law on Intellectual Property, amended and supplemented in 2019 and 2022 (“IP Law”) stipulates: “Trade secret means information obtained from activities of financial or intellectual investment, which has not yet been disclosed and which is able to be used in business”. Accordingly, a trade secret will be protected following the law when the following conditions are met without having to carry out registration procedures:
– It is neither common knowledge nor easily obtainable.
– When used in business activities, the trade secret will create for its holder advantages over those who do not hold or use it.
– The trade secret owner maintains its secrecy by necessary means so that the secret will not be disclosed or easily accessible.
Moreover, the Employer needs to specify the contents determined to be the enterprise’s trade secrets in the labor regulations to have enough grounds to determine that the Employee’s disclosing of this information is a violation and to take disciplinary action for dismissal.
The act of disclosing technological secret:
The 2019 Labor Code, as well as related guiding documents, do not define what is “technology secret”. However, the reference to the concept of “Technology” is provided for in the 2017 Law on Technology Transfer, accordingly, it can be understood that technology secrets are information about solutions, processes, and know-how with or without tools and means used to transform resources into products.
Each business will have numerous solutions, processes, and know-how during the operational process. However, it is essential to note that not all of these aspects are considered technology secrets. Therefore, if the Employer wishes to have a clear foundation and legal basis for taking disciplinary actions, developing regulations on technology secrets in their labor policies is extremely necessary.
The act of infringing the intellectual property rights:
According to Article 4 of IP Law, intellectual property rights refer to the rights of organizations and individuals regarding intellectual assets, including copyright and related rights, industrial property rights, and rights to plant varieties.
Detailed provisions regarding acts of infringing upon intellectual property rights for each type of intellectual property are specified in Articles 28, 35, 126, 127, 129, and 188 of the IP Law.
The Employer can establish their legitimate intellectual property rights by presenting any of the following documents:
1. Exclusive degrees, certificates of registration, or protection titles granted by competent agencies, such as invention patents, utility solution patents, industrial design patents, certificates of registered layout designs, certificates of registered trademarks, certificates of written geographical indications, plant variety protection certificates, copyright registration certificates, and related rights registration certificates;
2. Extracts from the National Register of Industrial Property regarding copyright, related rights, and protected plant varieties registered by the competent authority;
3. Copies of internationally registered trademarks protected in Vietnam by the state administrative body for industrial property;
4. For other intellectual property objects, evidence to prove the rights holder’s status includes documents, artifacts, and information on the grounds for establishing and acquiring corresponding rights as stipulated in Clauses 1 and 2, Point b and c, Clause 3, Article 6 of the IP Law.
In intellectual property rights infringement cases, the Employee not only faces potential dismissal imposed by their employers but also risks facing administrative or criminal measures by the law, depending on the nature and extent of the infringement.
The information mentioned above represents the second scenario that the Employer can rely on for implementing dismissal as a form of disciplinary action against the Employee. TNTP hopes that this contribution will support businesses in applying the law to appropriately handle disciplinary issues, thereby minimizing the risk of disputes.
Best regards,
TNTP & Associate International Law Firm
+84903503285
