Question 126: What is the most appropriate level of labour discipline to impose on Employees for their violations of the ILRs related to the media and social network? Reprimand, prolongation of a salary raise, removal from office or dismissal?

376

Pursuant to the current labour law, Employers have the right to apply one of the following four forms of labour discipline if Employees commit an act of violation specified in the internal labour regulations of the enterprise including reprimand, salary raise prolongation of less than 06 months, removal from office and dismissal. For the form of dismissal, since it is the highest form of discipline, the labour law only allows Employers to apply this form of discipline when Employees commit one of the following acts of violation: (i) Theft; (ii) 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; (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 leaving work for 5 cumulative days in 1 month or 20 cumulative days in 1 year without legitimate reasons.

Therefore, Employers may not apply the form of dismissal to Employees if their act of violation does not fall into one of the aforesaid acts (even if Employers’ ILRs provide for the disciplining of such act of violation.) With respect to the remaining forms of labour discipline, the law allows Employers to make self-determination of the offenses and the appropriate form of disciplinary action based on the nature and extent of each act of violation in the corporate context.

In applying the said provisions to the situations in which Employees have committed acts of violation relating to the media and social network, Employers are legally entitled to specify one of the said four disciplinary forms for violations relating to the media and social network of Employees on the basis of considering the extent and consequences of these acts.

Experience shows that some enterprises often apply the lowest level of discipline, reprimand for the first violation without any damage to the enterprise. If the severity is higher, depending on the case, Employers may apply a higher form of discipline (removal from office or salary raise prolongation of up to 06 months) or even dismissal (if such act of violation falls into one of the acts whereby Employers are entitled to apply the form of removal from office to the Employees defined in Article 126.1 of the Labor Code). An important note is that, as violations related to the media might be expressed in various forms of violation, Employers must clearly and specifically define the characteristics, nature and extent of each offense to make solid legal grounds for imposing disciplinary actions on Employees.