1.Is it in accordance with labour law for the fact that some local labour agencies refuse to allow Employers to provide for the violations of the ILRs on using social network and media as a discipline of their Employees?
Pursuant to Article 119.2 of the Labor Code 2012, the ILRs must include the following main contents: a) Working time and rest time; b) Order at the workplace; c) Labour safety and hygiene at the workplace; d) Protection of properties and business secrets, technological secrets and intellectual property of Employers; and e) Violations of labour discipline by Employees and forms of labour discipline action and material liability. Thus, the labour law grants Employers the right to establish their own regulations on labour discipline action in line with the legal violations subject to the specific activity of each enterprise. In case of any dismissal as a disciplinary action, the enterprise will be only entitled to dismiss Employees if they commit one of the following acts: (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 (ix) leaving work for 5 cumulative days in 1 month or 20 cumulative days in 1 year without legitimate reasons.
The Article 119.2 of the Labor Code, however, does not restrict Employers’ right to define by themselves what “Employees committing serious damage or threatening to cause particularly serious damage to their assets and interests” are. Under the said provisions, the fact that Employers will issue their own ILRs on disciplining Employees for violations related to the use of their media and social network is not in breach of the labour law.
Therefore, the fact that some local labour agencies do not allow enterprises to include the said contents in the ILRs is groundless and accordingly, enterprises should proactively persist in persuading the local labour agencies to agree to the same.
What should enterprises do in this case?
In cases where the local labour agencies do not allow the aforesaid contents to be included in the ILRs, in order to ensure the interests of his enterprise, the Employer may exercise its right to lodge a complaint or initiate a lawsuit at the competent courts in accordance with the law on administrative procedure.
From experience, Employers should choose the form of complaint because this plan is less costly and time-consuming than initiating a lawsuit at a competent court. Upon implementation of the complaint plan, Employers should pay attention to the following:
- The Employer will have the right to complain up to twice (the first one is to complain to the local labour agency that has issued the decision on disagreeing to the said contents of the enterprise and the second to the immediate superior head of the competent person to settle the first complaint);
- The complaint application must clearly state date of complaint; name and address of the enterprise; name and address of the complained agency; contents and reasons for complaints and documents related to the contents of the complaint and the request for settlement by the enterprise;
In particular, Employers should clearly state the basis and reason for the complaint to persuade the complained agency. Employers may emphasise the nature and serious consequences the media and social networking could bring to enterprises if Employers do not incorporate these said measures into their ILRs. For example, with the viral speed of the prevailing media and social networking, just one unpredictable behaviour or word of any Employee could have a lasting impact on the corporate credibility.
- If Employers still disagrees to the decision on complaint resolution after two complaints or the complaint resolution has not taken place within its time limit (the time limit for the first complaint is for no more than 30 days or 45 days for complicated cases; the time limit for the second complaint must not exceed 45 days or 60 days for complicated cases as from the date of acceptance, Employers may initiate a lawsuit against the complained agency at the competent court.
Note that the
statute of limitations for an Employer to exercise its right to complain is 90
days from the date of receipt of a decision/ notice requesting an amendment of
the ILRs of the local labour agency. In case of non-resolution
of the first complaint upon expiry of its time limit or from the date of
receiving the first complaint resolution decision with which Employers disagree
and wish to make a second complaint, they must do so within 30 days (or 45 days
if the enterprise is located in remote, difficult-to-access areas) as from the
expiry date of the first resolution.
Article 7 Law on complaints 2011
Article 8.2 Law on complaints 2011
Articles 7, 28 and 37 Law on complaints
Article 9 Law on complaints
Article 33.1 Law on complaints