Question 114: How to specify the dates of violations which directly relate to Employers’ finance, properties, technological know-how, business secrets when calculating the statute of limitations for handling violations of labour disciplines?

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Pursuant to Article 124.1 of the Labor Code,       the maximum statute of limitations for handling violations of labour disciplines is 6 months from the date of violation; as for the case of violation directly related to Employers’ finance, properties, technological know-how, business secrets, the same is 12 months at maximum. Other than the said regulation, labour law does not provide any regulation on how to specify the date of violation to calculate the statute of limitations for handling violations of labour disciplines; and does not define a violation which directly relates to the Employer’s finance, properties, technological know-how, business secrets to decide a longer statute of limitations for handling violations (12 months). Therefore, the interpretation and application of law in this case will depend largely on the opinions of the local competent labour management agency or the court if a labour dispute arises. To ensure that the decision on imposing disciplinary actions is issued within the statute of limitations, Employers should note the following points:

1.Regarding how to specify the date of violations

In practice, it is very difficult to specify the date of violations, especially for the enterprises which do not use machines or technologies to manage and maintain data, properties and the order at the workplace. Employers often cannot detect Employees’ violations on the spot or determine the extract times of those violations. Therefore, in case neither Employers nor Employees can determine the dates of violations, Employers should make the minutes to document the Employees’ violations at the time of detection, and refer to this time as a basis for calculating the statute of limitations for handling violations. However, the legal risk in this case is that the Employees may indicate a different date of violation to re-determine the statute of limitations. Then, the decision on imposing disciplinary actions may be considered unlawful because it has been issued out of the statute of limitations. Employers will have to prove the date of violation that they have determined in case a complaint or legal action is lodged with the state competent authority. To avoid legal risks, Employers should equip their enterprises with a strict labour management mechanism, data systems, cameras etc. to maintain order at the workplace.

2. Regarding how to identify the violations that are considered directly related to Employers’ finance, properties, technological know-how, business secrets

In practice, the definition of violations that are directly related to Employers’ finance, properties, technological know-how, business secrets is always an important factor that Employers need to determine in building the ILRs, as it not only helps to determine the statute of limitations for handling violations but also serves as a basis to impose the disciplinary action of dismissal on Employees. Therefore, to determine which violations are directly related to the finance, properties, technological know-how, business secrets, Employers need to include a specific definition of the enterprises’ properties, technological know-how, business secrets in the ILRs which have been registered with the local competent labour management agency to ensure that their decisions on imposing disciplinary actions are issued in accordance with law.