Question 111: When there is the sign that Employees have violated labour disciplines, can Employers ask for the help of the compliance department of the corporation or the parent company to conduct an internal investigation on Employees’ acts to support the decision on imposing disciplinary actions?

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Pursuant to Article 3.2 of the Labor Code, Employers include enterprises, agencies, organisations, cooperatives, households, individuals that use labourers under LCs. Therefore, enterprises that are not established under the Vietnamese law or do not directly use labourers such as corporations or parent companies abroad will not be considered as the Employers who are governed by the Vietnamese labour law. In principle, corporations or parent companies abroad will not have the right to investigate the Employees working for subsidiaries in the capacity of an Employer. To make it lawful for the compliance department of the corporation abroad to conduct an investigation in this case, the subsidiary must authorise the persons in charge in this department prior to the investigation (the authorisation here will follow the general principles and meet the requirements of the Vietnamese civil law). Accordingly, the persons in charge in this department will on behalf of the subsidiary in Vietnam conduct the procedures of an internal investigation to collect the evidence of Employees’ faults to support the decision on imposing disciplinary actions. Although there is not any specific regulation regarding this issue, the investigation in this case can only be conducted within the enterprise since the application of disciplinary actions, in principle, must be based on the ILRs[1], which by nature is a document to govern the internal order of an enterprise. However, please be noted that the subsidiary with the capacity of the principal Employer will still be obliged to explain the evidence collected by the compliance department of the corporation abroad if Employees make complaints about the decision on imposing disciplinary actions and inaccurate evidence[2].
[1]Article 128.3 Labor Code [2]Article 123.1 (a) Labor Code