Question 139: With respect to the disciplinary action of dismissal, must Employers prescribe in their ILRs the acts that can be considered as a violation of Article 126.1 of the Labor Code?

661

Pursuant to Article 126.1 of the Labor Code, Employers may impose the disciplinary action of dismissal on Employees who commit 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;

However, Decree 05/2015/NĐ-CP and relevant guiding documents do not contain any regulations that require Employers to particularise or clarify the definitions of theft, embezzlement, trade secret revealing etc. in the enterprise’s internal regulations. In practice, Employers should, however, make specific provisions for these issues to make it more transparent in applying the disciplinary action of dismissal. For instance, enterprises can specifically prescribe in their internal regulations the value of assets that are stolen, embezzled or damaged (it does not matter whether the value is high or low) etc. and list the types of information and data that fall into the category of trade secret.