(Nguyen Ngoc Phuc Dang and Nguyen Huu Phuoc, Esp.)
The picture of Vietnam’s economy under the impact of the Covid-19 pandemic for more than a year shows a great number of businesses have been affected negatively, forced to downsize or even into closure, resulting in many cases of retrenchments. In adapting to the new situation, many enterprises have successfully implemented “Mobile Working”, whereby, loosely speaking, employees can work online or remotely to avoid close contact and stop the spread of coronavirus. Online meeting via communication software such as Zoom, Microsoft Team, Google Meet, Facebook, Zalo, etc. is not a new thing now to many enterprises. Internal reporting is also carried out online rather than the traditional face-to-face way at the workplace. In this way, enterprises can oversee employees’ work performance and compliance with internal labour regulations (“ILRs”). If someone violates the ILRs, the employer will have the right to initiate disciplinary action against him or her following disciplinary procedure under the registered ILRs and the labour laws, including a disciplinary meeting to be held. Nevertheless, the question that strikes many HR professionals is whether an employer has the right to hold a disciplinary meeting online like they do with other internal meetings.
Meeting location: how should it be interpreted?
According to Article 70 of Decree 145/2020/ND-CP of the Government, setting out procedure and process for disciplinary action, when catching an employee committing disciplinary violation red-handed, the employer must make a record of the incident and inform the grassroots employee-representing organisation of which he or she is a member. At least 05 days before the disciplinary meeting, the employer must invite and notify mandatory attendees – the employee, his or her legal representative (if he or she is under 15), and the grassroots employee-representing organisation – of the agenda, time, and location of the meeting.
From the most common understanding ever known, the word “location” mentioned in the regulation above is defined as a geographic point where a disciplinary meeting is held by the employer for a face-to-face encounter with other attendees. This understanding has its root in the definition of “địa điểm” (location) provided by Han-Viet Dictionary of Dao Duy Anh, “địa điểm” means “chỗ đất ở (point géographique, local)” (place of residence, local/geographical point). Nevertheless, “Face-to-face encounter” during the current situation does not sound like something consistent with “social distancing”, whereby the Government recommends the practice of limiting direct contact. The regulation above does not specify if the meeting location is a place where everyone must attend in person. Eventually, the purpose of a disciplinary meeting is to create a space suitable for mandatory attendees to discuss and clarify issues relevant to the incident, all towards reaching a final conclusion on whether disciplinary action should be imposed.
We can observe that online meetings – if accommodated with a good internet connection, a camera and microphone of acceptable quality, and a reliable video call software – will be totally able to ensure the confidentiality and purpose of a disciplinary meeting. A “digital” location is exactly the solution, where attendees are provided with a link or password to a “digital” meeting room generated by the employer via a video call software. In this way, the disciplinary meeting now can be held for mandatory attendees to discuss with each other from a distance, while effectively preventing the risk of contagion.
Additionally, according to clause 2, Article 70 of Decree No. 145/2020/ND-CP of the Government, after receiving an invitation from the employees, mandatory attendees must confirm whether they can attend the disciplinary meeting or not. Who unable to attend the meeting at the time and location given can negotiate with the employer for a new time and location; if both parties cannot reach an agreement, the final decision is at the discretion of the employer. If any mandatory attendee does not confirm attendance or is absent from the meeting, the employer will still be able to proceed with the disciplinary meeting at the given time and location.
Meeting minutes: how should they be constituted?
According to Article 70 of Decree 145/2020/ND-CP, contents of the disciplinary meeting must be recorded in minutes which are confirmed and signed by mandatory attendees; if anyone is refusing to sign the meeting minutes, their names, and the reason for doing so (if any), must be stated in the meeting minutes. Within the statute of limitations for disciplinary action, the person who has the authority to impose disciplinary action will issue and send a disciplinary decision to all mandatory attendees.
The question set out here: if the disciplinary meeting is held online, how will meeting minutes be constituted in accordance with the laws?
Following the requirement above, mandatory attendees ought to be allowed to express their confirmation of the meeting minutes before the meeting comes to an end. This can be done in an online disciplinary meeting by requesting the creator of the meeting minutes to read the minutes out loud or send a digital version to mandatory attendees; once everyone has acknowledged the minutes’ contents, the employer can request for their confirmation; these activities can all be demonstrated in the form of text messages, audio, and even video recording the meeting (a feature that almost every online meeting software has) as evidence.
When it comes to the signing of the meeting minutes, the employer will have two options i.e.: traditional wet-ink signature or electronic signature. According to Article 1 of the Law of Electronic Transactions 2005, e-signature is not allowed on documents related to granting of land use right certificate, house ownership, other types of real estate; documents on inheritance; marriage certificate, divorce decision, birth certificate, death certificate; draft, and other types of valuable paper. Frankly speaking, except for tax, customs, and social insurance, the use of e-signature is nevertheless still quite limited or even unseen in most of the other sectors (even though it is legal). Many people, including those working for the State agencies specialising in the settlement of labour disputes, are still worrying about the reliability as well as the legality of e-signature, partly attributed to its novelty.
For that reason, to make sure that parties can feel safe and assured, the idea of signing the meeting minutes with an e-signature is ill-suited in comparison with that of wet-ink signature. Then, to give a second look, one can see that relevant requirements do not limit the meeting in terms of time. The employer, therefore, has the right to send meeting minutes to mandatory attendees for their signatures before declaring the meeting closed; while waiting for others to sign the minutes, the employer can proactively request for postponement (this is not prohibited by laws). What if the employee refuses to sign and return the meetings? It could be regarded as a mandatory attendee refusing to sign the meeting minutes; in such a case, his or her name and the reason for refusal (if any) will be recorded in the minutes, but other attendees are still required to sign. Consequently, it is for the best that the employer sends the meeting minutes to the employee before sending them to other attendees; the minutes can be sent by postal mail, express delivery (confirmation upon receipt recommended), or even a delivery app with a document delivery feature such as Grab or Be as long as it suits to the company’s schedule and need of confidentiality.
A disciplinary decision from an online meeting: is it recognised by laws?
According to Clause 4, Article 70 of Decree 145/2020/ND-CP, within the statute of limitations prescribed in Clauses 1 and 2, Article 123 of the Labour Code, the person having the authority to impose disciplinary action will issue a disciplinary decision and send it to mandatory attendees.
Reading and understanding the laws by mere theoretical analysis, one would clearly conclude that the online disciplinary meeting can no doubt substitute for the traditional face-to-face one. Nevertheless, it is pretty much of great confidence to blatantly say the disciplinary decision from the result of a disciplinary meeting will be recognised unconditionally by the labour laws. Any employee who is disciplined through an online disciplinary meeting will have the total right to file a complaint to the competent State agency or a lawsuit to the Court if he or she claims that the disciplinary meeting is illegally held. From this point forward, the answer of whether or not the disciplinary decision will be recognised is left up to the discretion of the state agency receiving the complaint or the Court accepting the case. Despite online meetings are now considered as a part of “the new normal” in this situation, experience shows the state agencies are still loyal to the mindset of “old normal” when it comes to novel issues that have not yet been guided by laws.
If the disciplinary action carried out with an online meeting is concluded unfounded and against the statutory procedure under Article 18 of Decree 28/2020/ND-CP of the Government, the accused employer can be fined from VND5,000,000 to VND10,000,000, this amount is double for corporate employers. Additionally, the employer can be ordered to reinstate the disciplined employee and pay the contractual salary for the number of days of his or her absence from work (if any). If the disciplinary decision of dismissal is declared unlawful by the competent Court, the consequence facing the employer could be way much significant. The thing of which employers should take note of is that it is very difficult for the labour laws to catch up with dramatic social and economic changes, especially during the widespread contagion of the Covid-19 so far. the enterprises cannot expect lawmakers sitting in the National Assembly will be able to keep up with their demands overnight. Legal risks stemming from the silence and uncertainty of laws, resulting in varied ways of interpretation from different people and perspectives, are understandable.
What we observe from the fact, as many medical experts have warned, a scenario where the Covid-19 is stopped completely in a near future is beyond reality. Saying that disciplinary action cannot be conducted online at this time, for the labour laws lack details about the issue, will definitely erect many obstacles to the management of human resources in businesses. This will also affect employees, who are the victims of misconduct by their colleagues and managers. However, the statute of limitations provided by laws for proceeding disciplinary action is only 06 months as from the occurrence of violation, or 12 months for violations relating directly to finance, asset, disclosure of employers’ technology, and trade secret.
Practical experience also proves online disciplinary meetings are essential and justifiable for companies for the following reasons:
- Firstly, as mentioned above, holding online disciplinary action meeting is one of the effective ways to prevent contagion and exercise the policy “social distancing” set forth by the Government;
- Secondly, employees will feel more comfortable with the disciplinary meeting if it is held in their houses or a place of their choice such as a lawyer’s office, rather than at their workplace. The experience of many HR professionals also lets us know that matters having an impact on employees’ work opportunities often give rise to negative feelings in themselves; particularly, those disciplined at the workplace are more susceptible to feeling embarrassed with their colleagues and find it hard to calmly get back to work.
- Thirdly, because many enterprises now have an open office with glass-wall meeting room, other employees one way or another can observe what is happening in the disciplinary meeting, which distracts them and further seeds uncertainty; this makes the disciplinary meeting a topic for rumours and gossip (never an HR professional wants this). Therefore, the online disciplinary meeting will help ensure more confidentiality.
Additionally, there are also benefits from technology, for example, Zoom has Breakout rooms, allowing the host to split the meeting into small separate sessions to discuss. Mandatory attendees can use this feature to discuss privately in the disciplinary meeting.
Through a loose interpretation of laws as the detailed analysis above, regulations on the process and procedure for disciplinary action do not set any considerable hindrance to holding a disciplinary meeting. Is it the tendency to “wait and see” that constrains employers to wait cautiously for a detailed guideline from the competent State agency or result from settling a dispute over similar matters to eventually determine the legality of online disciplinary meetings before proceeding in practice? Even employers know it will adversely affect their management of HR issues, but no one wants to be dragged into a lengthy, arduous, and expensive dispute that puts their enterprises’ reputation at risk. For this reason, the Government should promptly issue a detailed guideline on the procedure for conducting disciplinary action online, providing a legal ground for concerned employers to comply and exercise rightly.