Question 122: Disciplining in the form of extending pay raise period is one of the disciplinary forms where Employee violate LD-related cases including the regulations on compliance with time, technology and production and business management in ILR. Accordingly, when being disciplined in the form of extending pay raise period, Employees’ pay raise period will be postponed compared with the period as agreed by the parties or the period under the enterprise policy. Regarding the date of disciplinary action in the form of extending pay raise period, the labour law has not yet provided specific guidance on the “date of disciplinary action” for disciplining in the form of extending Employees’ pay raise period, which leads to different interpretations for this phrase. Thus, how about understanding this phrase for proper application?

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In this regard, because the labour law has not yet provided specific guidance on the “date of disciplinary action” in the form of extending Employees’ pay raise period, there are currently three different views as follows:

  • View 1: considers the “date of disciplinary action” in the form of extending Employees’ pay raise period to be the date on which Employers issue a disciplinary decision. Accordingly, this view holds that if the pay raise takes place after six months from the date of the disciplinary decision in the form of extending pay raise period, Employees’ pay will still be raised at the date of pay raise by the Company. 
  • View 2: considers the “date of disciplinary action” in the form of extending pay raise period to be the date on which Employees should have been paid a pay raise as agreed upon by Employees and Employers under LCs or CLAs, but as a result of the disciplining of Employees, they will be subjected to a six-month extension of pay raise period from the date of considering pay raise.
  • View 3: considers the “date of disciplinary action” in the form of extending pay raise period to be the date of making the decision on LD, and the disciplining date is valid only for application of Article 127.1 of the Labor Code, which serve as a milestone to identify the date on which Employees are entitled to “being removed from discipline”, namely “being acquitted of previous criminal record” on an offense, concurrently providing a basis for evaluating Employees’ non-relapse. This view holds that “the date of disciplinary action” and the date on which the disciplinary action is taken in the form of extending pay raise period (i.e. the date of application) are different. Accordingly, the “date of disciplinary action ” is only to determine whether an Employee is subject to dismissal due to his/her relapse while the date of application in the form of extending pay raise period is still the date on which Employees should have been entitled to a pay raise as agreed upon by Employees and Employers, CLAs or under the enterprise policy. Since Employees are disciplined in the form of extending pay raise period, their pay raise is 6 months late from that date. Thus, compared with View 2, this view also indicates a similarity.

Thus, it seems that the interaction between pay rise and disciplinary measures in the form of extending pay raise period is unclear. In this regard, upon consultation with some specialists from the provincial/ municipal DOLISA, they are in favour of View 1 on the basis of protecting Employees’ interests, arguing that there is a need for a clear distinction between pay raise and disciplinary action in the form of extending pay raise period. Accordingly, the date when the disciplinary decision is enacted and effective (specialists believe that as a rule, the date when the disciplinary decision is normally issued is also the date when the decision takes effect) will be the date of counting disciplinary action time in the form of extending pay raise period. If Employers do not give any pay raise during 6 months of disciplinary action, Employees will still be entitled to being removed from discipline and considered for a pay raise if a pay raise period takes place after that disciplinary period. Experienced lawyers in the area of labour law lean toward View 3 as aforesaid because according to View 1, any disciplinary action in the form of extending pay raise period almost has no meaning. Indeed, for enterprises of which the general policy is to raise pay at the end of the year, this does not impact Employees who are disciplined at the beginning of the year in the form of extending pay raise period. As for View 2, the “date of disciplinary action” when Employees should have been paid a pay raise, will not be accepted because it will affect discipline removal and reduce the duration of suffering LD.

Based on the said issues raised above, there are many conflicting views and when there is any dispute between Employees and Employers, only the view of the dispute settlement agencies are applied. The application of which view related to what defines “the date of disciplinary action” is important in choosing the right solution and reducing the risks to enterprises. Therefore, with prudence, enterprises should send their official letters to the competent and relevant State authorities so that they can obtain formal answers to these issues before performing.