Sharing of expertise
Question 137: In case of applying the disciplinary form of dismissal for a relapse, is such relapse required to be the same as the previous disciplined offense? The ILRs stipulate that “Employees will be disciplined in the form of extending pay raise period if Employees commit a relapse by causing another offense due to which Employee have been reprimanded for the most recent six months regardless of whether such offense is the same as the previous one”. Is the said ILR stipulation contrary to the law?
1.In case of applying the disciplinary form of dismissal for a relapse, is such relapse required to be the same as the previous disciplined offense? Pursuant to Article 126.2 of the Labor Code, a relapse will be construed as the case where Employees repeat the offense that has been disciplined and not yet acquitted of…
Question 136: Are Employers required to give Employees an advance written notice of the LD meeting if Employees agree to conduct the meeting without any need to go through the procedures of prior notice by Employers? Are Employers required to notify 5 working days for the 2nd and 3rd notices if the participants were not fully present at the previous LD meetings?
1.Are Employers required to give Employees an advance written notice of the LD meeting if Employees agree to conduct the meeting without any need to go through the procedures of prior notice by Employers? Pursuant to Article 30.1 of Decree No. 05/2015/ND-CP dated 12/01/2015, Employers must notify in writing Employees of the disciplining meeting at…
Question 135: The Labor Code prescribes that Employers may dismiss Employees who cause serious damage or threaten to cause extremely serious damage to the Employer’s properties and interests. How to determine if an Employee causes serious damage or threatens to cause extremely serious damage?
1.What are the relevant regulations to be referred to for determination of the serious damage or the threat to cause extremely serious damage? Currently, the labour law and relevant guiding documents do not provide for any general criteria to determine the serious or extremely serious damage. Therefore, the levels of serious or extremely serious damage…
Question 133: Which positions in an enterprise can be subject to the disciplinary action of removal from office? How are the salary, bonus and insurance regime that Employees are entitled to after they are disciplined in form of removal from office?
1.Which positions can be subject to the disciplinary action of removal from office? Pursuant to the labour law, removal from office is a form of labour discipline, but it can only be applied to Employees who are holding managerial titles in the enterprise. However, the Labor Code currently does not provide regulations over the people…
Question 132: Can Employers impose disciplinary actions on Employees when they disagree about such actions? What are the legal risks for Employers in this situation?
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…
Question 131: Upon detecting Employees using social networks to conduct inappropriate behaviours in accordance with enterprise regulations, how can Employers affirm that Employees do so? May Employers investigate the case by themselves or must they have recourse to the police in accordance with the law? If Employers may investigate by themselves, to what extent may the investigation be conducted under the law?
In principle, the means of employment provided by any Employer, such as electronic equipment and computers, to Employees will be considered corporate assets. Therefore, if the Employer suspects that Employees are using social network to perform acts that are inconsistent with the ILRs, the Employer himself may verify whether Employees violate through the inspection of…
Question 129: There are some Employees who defame their colleagues on social networking sites and are found by the Employer who subsequently conducts the procedures for labour discipline. Such Employees argue that that is an interpersonal civil matter outside of the corporate territory and working hours and they will not be subject to the Employer’s labour sanctions. How will the Employer handle such cases?
From the perspective of civil law, acts of defamation between individuals outside the workplace and beyond the working time of the Employer will not be subject to the scope of management and disciplinary action by the Employer. Accordingly, depending on the severity of any offense such as humiliation or slander, individuals who have defamed or…
Question 128: In order to apply appropriate labour disciplinary actions to Employees who violate the regulations on social networking, enterprises must have clear and detailed regulations in their ILRs registered with the local labour agency, but the fact is that some local labour agencies have not agreed to put the regulations on social networking into the ILRs due to the newness of the technology. What should the enterprise do in these cases?
1.Is it in accordance with labour law for the fact that some local labour agencies refuse to allow Employers to provide for the violations of the ILRs on using social network and media as a discipline of their Employees? Pursuant to Article 119.2 of the Labor Code 2012, the ILRs must include the following main…
Question 127: Proving the material damage of an enterprise when Employees disclose confidential information on the social network (such as property, prestige, revenue/profits, costs, etc.) to apply the appropriate form of discipline is often very difficult because a damage may be of a mental nature such as reputation and brand of the enterprise and you cannot quantify the extent of such damage in terms of monetary value or prove the existence of such damage. What should the enterprise do in these cases?
1.Are Employers required to prove any material damage when Employees disclose the enterprise’s confidential information on the social network? First, it should be made clear that the term “confidential information” is not currently covered or explained in the Labor Code and its written guidelines on implementation. Article 126.1 of the Labor Code only refers to…
Question 126: What is the most appropriate level of labour discipline to impose on Employees for their violations of the ILRs related to the media and social network? Reprimand, prolongation of a salary raise, removal from office or dismissal?
Pursuant to the current labour law, Employers have the right to apply one of the following four forms of labour discipline if Employees commit an act of violation specified in the internal labour regulations of the enterprise including reprimand, salary raise prolongation of less than 06 months, removal from office and dismissal. For the form…