Labor Discipline

Employees working for enterprise must comply with the discipline’s regulations (especially company regulation). Should an employee violate company regulation then enterprise is allowed to solve the violation following the labor regulation. The labor discipline must strictly follow regulations, otherwise enterprise will responsible for serious result for any wrong-full conduct.

Company regulation: is a set of documents including enterprise regulation about security, safety while working; has been registered by enterprise in compliance with the law.

Labor Discipline: is a set of documents about the compliance to working hours, technology and product operation, business conduct issued by employer in company regulation and by law.

Relevant legal documents:

1. Law on Labor 2019
2. Decision 145/2020/NĐ-CP orient Law on Labor about labor condition and relationship

Crucial elements of labor discipline: 

Employers only allow to discipline employees that have conducted violation actions that are demonstrated in company regulation. If an enterprise does not have company regulation, or that violation action is not regulated in the company regulation then the enterprise is not allowed to discipline employees.

Rules when conducting labor disciplines:

1. Enterprise must be able to prove Employee’s wrongful act (it is not the Employee’s responsibility to prove innocent);
2. There must be present of representative organization of Labor at headquarter level (union) that Employee is a member of;
3. Employee has the right to self-defense, or request lawyer or union; in case employee is under 15 years old then legal representative must be present;
4. There must be meeting minutes for the disciplines;
5. It is not allowable to apply multiples discipline methods for one violation action
6. When an employee conducts multiple violation actions at the same time then the employer only allows the highest discipline methods respective to the most serious violation action.
7. Employer is not allow to conduct labor discipline when employee is pregnant; Employee (both male and female) have maternity leave, having kids under 12 months and other case such as: Employer is taking sick leave; resignation with employer’s approval; Being in probationary detention; employee who conduct violation action is in mental diseases or other diseases that lead to unconsciousness or unable to control behavior.

Discipline methods

1. Reprove.
2. Extend salary increase but no more than 06 months.
3. Dismissal.
4. Fire.

While conducting discipline method Employers are NOT allowed to:

1. Harmful act toward health, dignity, life, creditability, personality of Employee
2. Monetary discipline, salary cut instead of labor discipline

Case that the labor fire discipline can be applied

1. Employee who has conducted stealing, embezzlement, gambling, voluntarily injure, use drug at the working place;
2. Employee who has exposed trade secret, technology secret, intellectual property violation; has conducted action that caused serious or threaten to cause property damage, enterprise benefit or sexual harassment at the working place regulated in company regulation;
3. Employee has been receiving labor discipline that extends salary increase timeline or dismissal but keeps violating within the adobe timeline that has not been eradicated labor discipline.
4. Employee deliberately quit job for 05 days accumulated within 30 days or 20 days accumulated within the timeframe of 365 days counting from the first day that individual quit job without reasonable excuse (Reasonable excuse can be natural disaster, fire, employee, employee’s family member is sick with hospital paper from authority hospital or health institution and other institution regulated in the company’s regulation).

Labor Discipline eradication time

Employee has been reproving after 03 months or disciplined by extending salary increasing time after 06 month or dismissing after 03 years counted from the disciplined date, if employee do not continue to violate company regulation then it shall be eradicated.

Labor discipline procedure

1. Step 1. When the wrongful action happens, the employer or Enterprise starts with forming the violation minutes and notify the union, legal representative for employees under 15 years old.
2. Step 2. Collecting evidence proving wrongful acts of employee
3. Step 3. Before organizing the labor discipline meeting 05 working days, Enterprise must notify the content, time, location, full of the employee conducted wrongful act, the wrongful act, participants, all the participants must receive the notification before the meeting.
4. Step 4. The participant must confirm the attendance before the meeting. In case participant cannot attend the proposed time, location then parties can negotiate to change time, location; if no there are no negotiations then enterprise can decide time, location;
5. Step 5. Conducting the labor disciplined meeting follows the notified time, location. If there is a participant who does not confirm their attendance or is absent then the meeting shall continue.
6. Step 6. Making meeting minutes, it has to be approved before the meeting ends and has to be signed by all the participants. If there is one participant refuse to sign in the meeting minutes then the meeting minutes writer must record their name, reason for not signing (should any) in the meeting minutes.
7. Step 7. Issue the discipline decision and deliver it to the notified participant. The meeting organization, issuing the labor disciplined decision must be within the regulated timeline.

Remarks: Employee has the right to appeal if they think the labor disciplined decision.

Temporary Suspend

1. Enterprise has the right to temporarily suspend employee jobs should the employer see the complexity in the violation and let employees continue to work will lead to difficulty in proving.
2. The suspending time must not exceed 15 days, for special cases no more than 90 days. During the suspending time, Employee has the right to request for 50% of advance salary payment. If the final decision is that the employee has to receive labor discipline, they shall not have to pay the money back. If no labor discipline is made, then the employer has to pay a complete salary for the suspending time.

Remarks:

1. In reality, labor discipline is very complicated, especially when it is related to a manager position in an enterprise, employee in Union, or a case in which the final decision is fired. Beside that, employee violation actions also cause damage to the enterprise. Enterprises need to verify the exact value of damage to request employees to compensate.
2. In case of a wrong decision (usually wrong in the stage of inviting participants to attend labor disciplined meetings and determining value of damage), this will make the labor discipline become a labor conflict, and need to be solved at the courtroom (employer filed a complaint about the final decision with the judge). This will be time-consuming and financial loss to both enterprise and employee.
3. Therefore, enterprises need to be extra careful regarding labor discipline issues, as well as annually rechecking company regulation, to make amendments, changes to be aligned with the law and practical working conditions, for instance regulation regarding intellectual property, property protection.

Should you have any questions regarding the above allowances, please don’t hesitate to contact An Luat Viet Nam for support and advice. Our law firms with professional lawyers will provide the best solution regarding matters, conflict arises at the workplace. AnLaw lawyer will accompany clients in labor discipline procedure (represent enterprise, employee, determine value of damage, determine labor discipline method..)

In case the conflict needs to be settled at the court, An Luat Viet Nam will provide lawsuit procedure, authorized representative, barrister, appeal procedure, counterclaim,…) to guarantee client’s best legal benefit during lawsuit procedure.