Question 109: If a person has been prosecuted for: the crime of violating the gender equality right (Article 165 of the Penal Code), will they still be disciplined from the perspective of labour law? Is it possible to dismiss this Employee?

504



1.If a person has been prosecuted for the crime of violating the gender equality right pursuant to Article 165 of the Penal Code, will they still be disciplined from the perspective of labour law?

Criminal penalties and labour disciplinary actions are of two different categories prescribed in two different Codes, the Penal Code and Labor Code in particular. So, if a person has been prosecuted for a crime prescribed in the Penal Code, this does not automatically mean that this Employee will be exempt from labour disciplinary actions as prescribed by labour law.

In principle, if Employers can prove that the Employee’s acts are the violations which have been prescribed in the ILRs, and Employers have conducted the procedure for handling labour discipline violations in accordance with labour law, then they can apply the regulations of labour law and the ILRs to impose disciplinary actions on Employees despite that the Employees have been prosecuted for a crime in the Penal Code.

However, if Employees are held in temporary custody or detention, or are waiting for the investigation and verification results of competent authorities with respect to the violations related to theft, embezzlement, gambling, deliberately injuring others, using drugs in the workplace, revealing trade secrets, technological know-how, infringing the Employer’s intellectual property rights, causing serious damage or threatening to cause extremely serious damage to the Employer’s properties and interests as prescribed in Article 126 of the Labor Code, the Employer’s right to handle labour discipline violations in this case will be limited to a certain time limit.In particular, Employers will not be allowed to impose labour disciplinary actions on Employees in this period, and they can only conduct the procedure for handling labour discipline violations in accordance with labour law after this period has ended.

One thing of note, if the statute of limitations for handling labour discipline violations has ended when Employees are no longer held in temporary custody or detention, or no longer wait for the verification results, conclusions from investigation bodies (the maximum statute of limitations for handling violations is 6 months from the date of violation; if violations are directly related to Employers’ finance, properties, technological know-how, business secrets, the maximum statute of limitations is 12 months), this statute of limitations will be extended by 60 days from the expiry date to ensure the Employer’s right to handle labour discipline violations.

2. If Employers are allowed to impose disciplinary actions on Employees in this case, can they dismiss the Employees?

Pursuant to Article 126 of the Labor Code, Employees can only be dismissed when committing one of the following acts: (i) Theft; Embezzlement; (iii) Gambling; (iv) Deliberately injuring others; (v) Using drugs in the workplace; (vi) Revealing trade secrets, technological know-how, infringing the Employer’s intellectual property rights; or (vii) Causing serious damage or threatening to cause extremely serious damage to the Employer’s properties and interests; (viii) Having been put under the discipline of prolonged pay raise but repeat the violations within the disciplinary period, or dismissed but repeat the violations; or (ix) leaving work for 5 cumulative days in 1 month or 20 cumulative days in 1 year without legitimate reasons.

For the case where Employees are criminally prosecuted for the crime of violating the gender equality right, this acts is not one of the violations that enable Employers to impose the disciplinary action of dismissal, so Employers are not allowed to dismiss Employees. Therefore, the point of note in this case is that if Employers wish to impose the disciplinary action of dismissal, they must prove that Employees have committed one of the acts prescribed in Article 126 of the Labor Code, provided that these acts have been prescribed in the ILRs. In addition, Employers must also comply strictly with the steps of the procedure for imposing disciplinary actions in accordance with labour law. Upon satisfaction of the two conditions above, Employers will have sufficient legal grounds to dismiss Employees.