“Working online has grown significantly in the modern era when compared to the early years of the millennium. The development of information technology has provided businesses and investors with numerous options for optimizing management and reducing costs on storage, printing, office rental, and organizing events which requires a large number of participants. Technology provides the convenience for businesses to exchange information on a large scale. Thus, information exchange is no longer limited by geographical boundaries and this removed many constraints. However, there could be many issues faced by businesses when using technology for a purpose such as holding labor related disciplinary hearings online instead of conducting an in-person meeting. Hence, this article shall discuss the feasibility and legality of holding meetings related to labor disciplinary hearing online.”
According to Article 70.2(a) ‘Decree 145/2020/ND-CP’, “at least 05 working days before the date of the meeting to handle the labor disciplinary hearing, the employer shall notify the agenda, time and location of the meeting, full name of person subjected to disciplinary action, and the disciplinary violations involved to the parties who must attend the meeting specified at Point b, Point c Clause 1, Article 122 of the Labor Code, and must ensure these parties receive the notice before the meeting”.
Thus, it is mandatory to provide the information about location of the meeting to participants when announcing the meeting to handle a labor disciplinary hearing. The statutory condition for the location, however, is not specified in current labor law resulting in a flexible interpretation. Linguistically, “place” refers to a defined geographical location where the parties can meet face to face and perform specific tasks. Inevitably, a geographic place such as a meeting room, an address, or an administrative boundary area is a requirement for constituting the concept of place.
However, places should be understood in a flexible way in the current circumstances caused by the Covid-19 pandemic. Since the pandemic poses an extensive impact on people’s lives, forcing a lot of work to be done over the internet to avoid direct contact as much as possible, a place can be broadly interpreted as a space (including the internet) where the parties can exchange information and meet; in this case a meeting to discuss labor discipline.
To effectively implement online meetings, the parties must ensure good network infrastructure, software, and clear descriptions and instructions to ensure the meeting is fully organized with all participants. Furthermore, Article 70.2(b) of ‘Decree 145/2020/ND-CP’ requires participants to confirm whether they intend to attend the meeting or not. As a result, receiving prior confirmation from the parties ensures feasibility and reasonableness of holding a meeting to address a disciplinary hearing regardless of where it is held.
When the parties do not meet face-to-face, the preparation of minutes of meeting poses special issues, as opposed to the issue of “place” mentioned above. According to Article 70.3 of ‘Decree 145/2020/ND-CP’:
“3. The content of the meeting on handling of the labor disciplinary hearing must be recorded in writing, approved before the end of the meeting and signed by the participants of the meeting specified at Points b and c, Clause 1, Article 122 of the Labor Code. In case a person does not sign the minutes, the person recording the minutes shall clearly state their full name and reason for not signing (if any) in the minutes of meeting.”
Thus, in terms of formality, the parties must conclude by signing the minutes of the meeting. If they do not, they must clearly state why they did not sign the minutes. However, signing a physical document is not possible through an online labor disciplinary hearing.
Furthermore, even considering mailing documents to the parties to obtain signatures as an alternative to the above problem, comes with certain limitations. For example, the parties may have agreed on the content of the minutes of meeting at the time of the meeting but by the time the document was received, one or more parties, particularly the employee, could “change their minds”, making the statutory form of the minutes impossible to achieve. To avoid this situation, the employer can consider allowing the employee to sign this document in advance. If the employee refuses to sign the document, the employer can record the employees’ opinions via email as evidence, while also recording the employee’s disagreement in the minutes. Then, the employer can let the other parties sign the document.
However, this method is only an alternative option and does not completely fulfill the statutory conditions.
Presently, the regulations for the meeting of labor disciplinary proceedings do not prohibit the use of an online meeting.
Therefore, an online labor disciplinary hearing is feasible if the legal regulations are comprehended in a flexible way. In addition, the decision to take disciplinary action based on this meeting has legal effect.
However, as previously stated, the law still implies that disciplinary hearing should take place as much physically as possible rather than through an online meeting. Thus, the legitimacy of the disciplinary decision in this case is heavily dependent on the views of the state agency. The employer may be considered to have violated the law in this regard.
Hence, the current regulation is inclined towards face-to-face meeting and online mode of conducting disciplinary hearing still has many legal issues that must be addressed before it can be implemented. Since the Covid-19 pandemic is causing many complicated developments, when it is necessary to handle labor disciplinary proceedings, it must be done with caution. The employer should make a cautious approach and utilize the provisions in the statute of limitations for dealing with labor disciplinary issues. If continuation of work has an impact on the enterprise, the enterprise may consider temporarily suspending work to avoid potential risks.
Time of writing: August 19, 2021
The article is based on the current law at the time of recording as above and may no longer be relevant at the time readers access this article due to changes in applicable law and specific cases that the reader wants to apply. Therefore, the article is for reference only.