Question 113: For the purpose of confidentiality, can Employers use a detective service from security companies or information provision companies to conduct an internal investigation on Employees’ acts, which serves as a basis for imposing disciplinary actions? If yes, is the evidence collected by the detective service of legal validity and accepted for the consideration of labour disciplinary actions?

Currently, there are many companies unofficially providing detective and investigative services for individuals and organisations. The development of the detective service arises from the enormous need in the market. However, users of this service should note that the law has not provided the legal corridor for private detective’s activities, or in other words, the detective’s job has not been recognised by law. In reality, most companies providing detective and investigative services in Vietnam are disguising them as the service of information provision, security service and so on.

On the other hand, pursuant to Article 21 of the 2013 Constitution and Article 38 of the Civil Code, personal information is inviolable and protected by law. Personal information must be collected with the consent of the persons concerned, except that the collection or announcement of information or materials are made according to the decision of a competent agency. Since companies providing detective and investigative services are not the units which are recognised by law to have the function and authority to collect information, the Employer’s use of the detective service and the collection of Employees’ personal information accordingly may be considered as violations against law, violating the concerned Employees’ privacy rights if they do not consent to this. Therefore, Employers should consider this legal issue in using the detective and investigative services.

Regarding the collection of evidence of Employees’ violations, pursuant to Article 123.1(a) of the Labor Code, one of the principles in imposing disciplinary actions on Employees is to prove that Employees have actually committed violation acts. Employers can prove this issue by collecting and providing the evidence and materials that document the Employees’ corresponding violations as a basis for imposing disciplinary actions. These evidence and materials may be used by Employers to substantiate their opinions at the Court or local competent labour management agencies if there is a dispute or legal action concerning the decision on imposing disciplinary actions.

Currently, there are not any regulations on the procedure for verifying and collecting evidence as well as the regulation on forms and conditions of the evidence which are used to impose disciplinary actions. However, Employers can refer to the regulations on evidence prescribed in the civil procedure law. Pursuant to Articles 94 and 95 of the Civil Procedure Code, valid evidence may include:

  • Readable materials (originals or copies lawfully notarised or authenticated or supplied and certified by competent agencies or organisations);
  • Audible, visible materials (must be presented together with the explanatory documents about the origin of such materials that are recorded by the presenting persons themselves, or with the documents certified by the one providing such materials for the presenting persons about the origins of those materials or documents related to such audio and/or video recording);
  • Electronic data (exchange of electronic data, electronic invoices, electronic mails, telegram, telegraphy, facsimile and other similar forms);
  • Exhibits (the original and related to the cases);
  • Involved parties’ testimonies, witnesses’ testimonies (recorded in writing or in audio-tapes, audio-discs, or video-tapes or discs or other audio or image recording devices);
  • Inspection conclusions;
  • On-site appraisal minutes;
  • Property evaluation and price appraisal results;
  • Written records of legal facts or acts that are formulated by functional persons (e.g. the minutes made and certified by the bailiff); and/or
  • Notarised/authenticated documents;

In addition, organisations, agencies and individuals can collect evidence by themselves by[1]: (i) collecting readable, audible or visible materials, electronic data, exhibits concerning the case; and/or (ii) identifying witnesses and obtaining their confirmations. Furthermore, Employers may collect evidence by requesting organisations, agencies and individuals to make copies of or provide relevant documents, and request the commune/ward people’s committees to authenticate the witnesses’ signatures. Particularly for the case where disputes are brought to the Court, agencies, organisations or individuals may request the Court to collect evidence and documents if they cannot do it; and may also request the Court to issue the decision on inspecting and valuating assets for the purpose of evidence collection. By performing the tasks mentioned above, agencies, organisations or individuals can verify and collect the valid evidence as listed.

As such, Employers may (or duly authorise a third party – the authorisation here will follow the general principles and meet the requirements of the civil law, and authorising the detective service in particular must take into account the issue of inviolable personal information as presented above) collect by themselves the evidence which are used for the purpose of considering and imposing disciplinary actions on Employees.In practice, Employers may work with the concerned Employees and/or the persons who have witnessed/known of the case and make minutes of these working sessions, or request these persons to prepare and submit written declarations regarding the case for the purpose of evidence collection. In addition, to strengthen the validity of the collected evidence, Employers should consider using the bailiff services. The bailiff will make minutes of the working sessions between Employers and the concerned Employees and/or document the fact that the concerned Employees and the persons who witnessed/knew of the case have submitted their declarations on the case to Employers as mentioned above.        

In addition, if there is a sign that Employees commit one of the acts of theft, embezzlement, gambling, deliberately injuring others, using drugs in the workplace, revealing trade secrets, technological secrets, 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 126.1 of the Labor Code, Employers may (and are obliged to) report these violations to the competent agencies which have the right to conduct an investigation (e.g. police) so that they will receive and handle the case. Accordingly, the competent agencies may investigate the case and collect the relevant evidence and materials. In this case, Employers must wait for the investigation results from the competent state agencies which will verify and give conclusions on the Employees’ violations before imposing disciplinary actions on Employees[2].

The next important point that Employers should be aware of in imposing disciplinary actions, they must ensure that Employees’ violations have been identified by the corresponding regulations in the ILRs which have been registered with the local labour management agency[3]; and Employers must fully and properly implement the procedure for imposing disciplinary actions as prescribed by labour law[4].

[1]Article 97.1 Civil Procedure Code

[2]Article 123.4 (c) Labor Code

[3]Article 128.3 Labor Code

[4]Article 123 Labor Code and Article 30 Decree 05/2015/NĐ-CP dated 12/01/2015