1.Can Employers impose disciplinary actions on Employees when they make an objection to the conclusion of the disciplinary meeting, and Employers have not issued the Decisions on imposing disciplinary actions?
Pursuant to Article 30.1 of Decree 05/2015/NĐ-CP, upon imposing disciplinary actions on Employees who have violated the ILRs, Employers must notify the grassroots TUEC and the Employees in writing of the disciplinary meeting at least 5 business days prior to the meeting.
1.1. Employees to raise objections to the disciplinary actions proposed in the meeting by not attending the meeting
Pursuant to Article 30.2 of Decree 05/2015/NĐ-CP, the disciplinary meeting will be held in the presence of all the intended participants. If the Employer has given 03 written notices but the Employees still do not show up at the disciplinary meeting, the Employer may keep the meeting going without the presence of the Employees, provided that they do not fall into the cases where disciplinary actions are prohibited as prescribed in Article 123.4 of the Labor Code.
As such, if the Employer has notified the Employees and the grassroots TUEC in writing of the disciplinary meeting but the Employees are absent, the Employer may continue to give similar notices to the Employees and the grassroots TUEC of this meeting. After sending 03 notices but the Employees still do not show up at the meeting, the Employer may continue the meeting without the Employees’ presence.
1.2. Employees to raise objections to the disciplinary actions proposed in the meeting by not signing the meeting minutes
Pursuant to Article 30.3 of Decree 05/2015/NĐ-CP, the disciplinary meeting must be minuted and the meeting minutes must be confirmed by the attendants before the end of the meeting. The minutes must be signed by the meeting attendants, including the grassroots TUEC, Employees, the minutes writer and other attendants (if any). If the Employees disagree about the conclusion of the disciplinary meeting and do not agree to sign the minutes, they must state the reason.
The labour law now does not provide the regulations for the case where Employees do not agree to sign the minutes as well as state the reason. Therefore, in the lawyers’ experience in similar cases, Employers may ask one or two other individuals who have independent rights and interests to be the witnesses and sign the minutes of the disciplinary meeting.
2. Legal risks in the case where Employers have issued the decisions on imposing disciplinary actions which are objected by the Employees
Pursuant to Article 132 of the Labor Code, if Employees disagree with the disciplinary actions imposed on them, they may: (i) complain to their Employers or the local competent labour agencies; or (ii) request settlement of labour disputes in a court in accordance with the legal proceedings. It is evident that labour law allows Employees to exercise the right to make complaints or initiate lawsuits against the Employer’s decisions on imposing disciplinary actions in any circumstances regardless of whether such decisions are well grounded and made in accordance with the law or not.
2.1. The case where Employees request settlement of labour disputes in a competent court
Pursuant to Article 201.1(a) of the Labor Code, Employees must go through the mediation process conducted by labour mediators before requesting competent courts to settle the labour disputes on imposing the following forms of labour discipline: – Reprimand; – Extend the pay raise period; or – Remove from office.
Therefore, Employees may request competent courts to settle the labour disputes on imposing the disciplinary action of dismissal without going through the mediation process conducted by labour mediators.
2.2. Employees to make complaints to Employers
Pursuant to Article 15 of Decree 119/2014/NĐ-CP, Employees will make the first labour complaint to their Employers and the Employers will settle the complaint within 30 days[1]. In case Employees still disagree about the result of the second settlement or the labour complaint is not settled within the said time limit, Employees may exercise the right to initiate lawsuits as mentioned above[2] or make the second complaint to the Chief Inspector of the provincial/municipal DOLISA.
In case Employees decide to make the second complaint about the disciplinary decision, the enterprise is obliged to explain the legality and appropriateness of the decision at the Chief Inspector’s request, and strictly comply with the valid decision on settlement of the complaint[3].
It is evident that labour law allows Employees to make complaints to or initiate lawsuits against Employers if they disagree about the disciplinary decision that Employers have issued. Therefore, to avoid the legal risks associated with the application of labour disciplines, the enterprise must always ensure that the acts that are the subjects of the disciplinary decisions have already been prescribed in the ILRs[4], and labour disciplines must be applied in accordance with the prescribed principles and procedures, and the person who decides to impose the disciplinary action must have the authority to do so.
If,
on the other hand, the judgment of a court or the conclusion of a state
authority is different from the disciplinary decision, the enterprise must
cancel it or re-issue a new decision to replace the previous one. The
enterprise must also restore the rights and interests for the Employee which
are affected by the disciplinary decision. For the case where the disciplinary
action of dismissal is imposed illegally, the enterprise is obliged to
implement Articles 42.1, 2, 3 and 4 of the Labor Code, including but not
limited to accepting the Employees back to work under the LCs, and paying
salaries, SI and HI premiums for the days when they are not allowed to work
plus at least 02 months’ contract salary.
[1]Article 19 Decree 119/2014/NĐ-CP dated 17/12/2014
[2]Article 10.2 (a) Decree 119/2014/NĐ-CP dated 17/12/2014
[3]Article 11.2 (đ), (e) Decree 119/2014/NĐ-CP dated 17/12/2014
[4]Article 128.3 Labor Code