Written By PLF Law Firm

On January 12th 2015, the Government has promulgated Decree No. 05/2015/ND-CP detailing the order of labour discipline, which shall come into effect from March 1st 2015.

1. Principles of handling labour discipline violation

a. The employer must be able to prove the fault of the employee.

b. The attendance of the organization representing the collective of grassroots-level employees is required in the handling of labour discipline violation.

c. The employee must be present and may defend him/herself or ask for a defense by a lawyer or any other person; if the employee is under 18 years old, there must be the participation of either of his/her parents or lawful representative in the handling of labour discipline violation.

d. The proceedings of a disciplinary case regarding a violation of the labour discipline must be preserved in writing.

e. It is prohibited to impose more than one form of labour discipline for a single violation of labour discipline.

f. For an employee who simultaneously commits more than one violation of labour discipline, it is only allowed to apply the highest form of discipline corresponding to the most serious violation.

g. Labour discipline may not be imposed for violations committed by an employee who is currently:

  • Taking sickness or convalescence leave or a leave with the employer’s consent;
  • Kept in custody or temporary detention;
  • Waiting for results of verification and conclusion of a competent agency for acts of violation such as theft, embezzlement, gambling, intentional infliction of injury, use of drugs inside the workplace, etc.;
  • A female employee who is pregnant or on maternity leave; the biological father, mother or legal adoptive father, mother rearing a child under 12 months of age. In the event where the statute of limitations for handling labour discipline violation has expired before the period of nursing a child under 12 months of age expires, such statute of limitations may be extended but for no more than 60 days from the expiry date of the period of raising a child under 12 months old.

h. No labour discipline shall be imposed on an employee who violates the internal working regulations while suffering a mental disorder or another disease which deprives him/her of the capacity to perceive or control his/her acts.

i. Prohibited acts when handling violations of labour discipline:

  • Infringing upon the body or dignity of the employee;
  • Applying a fine or wage reduction instead of a disciplinary measure;
  • Disciplining an employee who has committed a violation which is not defined in the internal working regulations.

2. Statute of limitations for handling labour discipline violation

The statute of limitations for handling a violation of labour discipline is 6 months commencing from the date the violation is committed. In addition, the statute of limitations for handling a violation of labour discipline directly related to finance and assets or disclosure of technological or business secrets is 12 months.

3.   Procedure of handling labour discipline violation

Step 1. Announcement

5 days prior to the meeting of handling labour discipline violation, the employer shall file a written notice of such meeting with the grassroots-level Trade Union or the higher-level Trade Union (where the grassroots-level Trade Union has yet to be established); the employee; the father, mother or lawful representative of the employee under 18 years of age.

Step 2. Meeting of handling labour discipline violation

The meeting of handling labour discipline violation shall be held in the presence of all participants informed in accordance with the abovementioned provision. In case where one of the participants is not present in the meeting although the employer has informed in writing 3 times, the employer shall nonetheless conduct the meeting (except for cases in which labour discipline may not be imposed, such as sickness leave, custody or temporary detention, etc.). The contents of the meeting of handling violation of labour discipline must be made in writing (the “meeting minutes”) and approved by the participants before the meeting ends. Signatures of the participants and the person who made the minutes must be sufficiently included in such minutes. If one of the participants refuses to sign such minutes, a reason must be clearly stated.

Step 3. Decision to handle labour discipline violation

The enterprise’s legal representative is one who has the competence to decide on the form of labour discipline to be imposed on the employee. The person who is authorized to enter into labour contract only has the competence to handle labour discipline violation in the form of reprimand.  The decision on how to handle labour discipline violation must be issued within the statute of limitations or the extended period of stature of limitations of handling labour discipline violation and must be sent to those participating in the meeting of handling labour discipline violation.

It is important to be noted that the employer is permitted to temporarily suspend an employee from working if the employer considers the case of violation complex and that any continued work performance by the employee can cause difficulties to verification. Work suspension may only be applied after the employer consults the representative organization of the grassroots-level employees’ collective. Particularly, the period of work suspension must not exceed 15 days, or 90 days in special cases. Upon the expiry of such period, the employer must allow the employee to resume working. In addition, during the period of work suspension, the employee is entitled to advance 50% of his/her wage prior to the suspension. In case the employee is disciplined, he/she is not required to reimburse the wage advanced to him/her. In case the employee is not disciplined, the employer shall pay the employee the full wage for the period of temporary work suspension.

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