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Question 140: Can Employers apply labour discipline in the form of oral reprimand?

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Pursuant to Article 125 of the Labor Code, labour discipline can be applied in the following forms: (i) reprimand; (ii) extension of the salary increase period to no more than 06 months; removal from office; and (iii) dismissal. When applying these forms of labour discipline, Employers must comply with the regulations and procedures on application of labour disciplines as prescribed in Article 123 of the Labor Code. Specifically, Article 30 of Decree 05/2015/NĐ-CP and Article 12 of Circular 47/2015/TT-BLĐTBXH prescribe that:

  • At least 05 days prior to the meeting for application of labour disciplines, Employers must give written notices to the Grassroots TUEC or of the superior trade union where a grassroots trade union is not yet established; the concerned Employees; parents or legal representatives of under-18-year old Employees.
  • The disciplinary meeting will be held with the presence of all the intended participants notified above. Where Employers have given 03 written notices (not counting the notices for postponement, cancellation or change of meeting location) but one of the participants is absent, Employers will still hold the meeting for application of labour disciplines, unless Employees are in the period when no disciplinary action is allowed as prescribed in Article 123.4 of the Labor Code.

The disciplinary meeting must be minuted, and the minutes must be confirmed by the attendants at the end of the meeting. The minutes must be signed by the attendants and the preparer. If one of the attendants does not agree to sign the minutes though they have attended the meeting, the reason for this must be stated;

The person authorised to enter into LCs will have the authority to issue the decisions on imposing disciplinary actions. The authorised person to enter into LCs will only have the power to impose the disciplinary action of reprimand. With regard to other forms of labour discipline, after the meeting for application of labour disciplines, the authorised person to sign LCs shall complete the dossier and propose Employers to consider and issue a decision on disciplinary action and arrange the implementation thereof.

  • The decisions on imposing disciplinary actions must be made within the statute of limitations or the extension thereof for labour discipline as prescribed in Article 124 of the Labor Code, and they must also be sent to the attendants of the meeting for application of labour disciplines.

When imposing disciplinary actions in whatever forms, as prescribed by the above regulations, Employers must comply with the said procedure including the steps of giving written notices to the required attendants, holding the meeting and making the decision on imposing disciplinary actions; however, it is actually hard for enterprises to comply strictly with these steps, especially the ones with a great number of Employees. The decisions on imposing disciplinary actions must be made in writing within the statute of limitations. Accordingly, the form of oral reprimand is no longer in line with the new Labor Code, and obviously this is not a basis for Employers to apply a stricter form of labour discipline on Employees.

Therefore, Employers cannot apply labour discipline in the form of oral reprimand. Instead, Employers must give written notices to the Grassroots TUEC and the concerned Employees before holding the meeting for application of labour disciplines. The meeting for application of labour disciplines must be minuted with all the attendants’ signatures (those who refuse to sign the minutes must indicate the reason). Referring to the meeting minutes, Employers will consider whether to issue the decision on imposing disciplinary actions (reprimand in writing or apply other forms of labour discipline in accordance with the ILRs).  In addition, Employers should take note of the authority to issue the decision on imposing disciplinary actions. Pursuant to Articles 30.4 and 3.1(a) of Decree 05/2015/NĐ-CP, the legal representative as prescribed in the enterprise’s charter will be the person with the authority to issue the decision on imposing disciplinary actions. However, if the person with the authority to impose disciplinary actions does not issue the decision by himself, then only the person authorised to enter into LCs with Employees has the power to apply labour disciplines, and can only apply labour discipline in the form of a reprimand. With regard to other forms of labour discipline, after the meeting for application of labour disciplines, the authorised person to sign LCs shall complete the dossier and propose the legal representative to consider and issue a decision on disciplinary action and arrange the implementation thereof.



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