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How to Legally Dismiss Employees According to Vietnamese Law? When dismissing employees, many businesses are not fully aware of legal regulations, leading to improper actions and lawsuits. So, what should businesses do to dismiss employees legally? All will be covered in this article.
What is Disciplinary Dismissal?
Dismissal is one of the disciplinary measures taken by an employer against an employee working for them, and it is the most severe form of labor discipline.
Disciplinary dismissal is a measure applied by the employer when the employee commits a serious violation of labor regulations. The application of disciplinary dismissal results in the termination of the employment contract between both parties.
Cases of Legal Disciplinary Dismissal of Employees According to Vietnamese Law
An employer is permitted to dismiss an employee when the employee violates labor regulations and falls under the following cases of disciplinary dismissal. These include:
1. The employee commits acts violating the law, including theft, embezzlement, gambling, intentional injury to others, or drug use at the workplace.
2. The employee discloses trade secrets, technological secrets, or infringes on the company’s intellectual property. Additionally, the employee may have committed other acts causing serious damage or threatening to cause particularly serious damage to the company’s assets or interests, or has engaged in sexual harassment at the workplace.
3. The employee has already been disciplined by having their salary raise delayed or being demoted, and before the disciplinary period ends, they repeat the same violation that led to the previous disciplinary action.
4. The employee is absent from work without permission for a total of 5 days within a 30-day period or for a total of 20 days within a 365-day period from the first day of absence, without a valid reason. Valid reasons include natural disasters, fires, personal or family illness, or other cases as specified in the labor regulations.
Participants in the Disciplinary Dismissal Process
According to Clause 1, Article 122 of the Labor Code, the participants in the disciplinary dismissal process must include:
1/ The employer.
2/ The employee, the employee’s legal representative (if the employee is under 15 years old), a lawyer, or the employee’s representative organization to protect the employee’s legal rights and interests.
3/ The employee’s representative organization at the workplace, if the employee under disciplinary review is a member.
Disciplinary Regulations in the Enterprise
Based on legal provisions, the company must include the following specific regulations in its labor regulations:
– Acts that may lead to disciplinary dismissal.
– Behaviors considered sexual harassment in the workplace, which form the basis for disciplinary dismissal.
– Cases in which the employee is deemed to have a valid reason for absence.
– The procedure and process for handling disciplinary dismissal.
– The person authorized to handle disciplinary actions and sign related decisions and documents for disciplinary dismissal.
The labor regulations must be registered in accordance with legal requirements.
How to Legally Dismiss an Employee according to Vietnamese Law?
In many cases, employees commit acts that warrant dismissal, but due to the company’s failure to follow the correct procedures for disciplinary dismissal, the dismissal is declared unlawful by the competent State authority, and the company must compensate the employee.
To legally dismiss an employee, if the company finds that the employee has committed a violation of labor regulations that falls under the cases of disciplinary dismissal, the following steps must be followed:
Step 1: Record the Violation
If the violation is caught in the act, the company must immediately record the violation and send a notice to the employee’s legal representative (if the employee is under 15 years old) and the employee’s representative organization at the workplace.
If the violation is discovered after some time has passed since it was committed, the company must collect documents and evidence to prove the employee’s violation.
To carry out disciplinary dismissal, it is the company’s responsibility to prove the violation. The employee is not obligated to prove that they did not violate the rules.
Step 2: Organize a Disciplinary Dismissal Meeting
The company must organize a meeting to handle the disciplinary dismissal within the statute of limitations for disciplinary dismissal.
The company must send a meeting notice to the participants of the disciplinary meeting at least 5 working days before the meeting. The notice should include the meeting agenda, time, location, the name of the employee being disciplined, and details of the violation.
If any of the participants indicate that they cannot attend the meeting at the scheduled time and location, the company and the employee must agree on a new time and location. If no agreement can be reached, the company has the right to decide on the time and location.
If the meeting notice is properly sent and one of the participants does not confirm attendance or is absent, the company may still proceed with the disciplinary meeting.
The company must create minutes of the disciplinary meeting. The minutes must include the signatures of all participants. If someone does not sign, the meeting secretary must record their name and the reason for not signing.
Step 3: Issue the Disciplinary Dismissal Decision
The company issues the disciplinary dismissal decision and sends it to the required meeting participants according to the regulations.
Legal Consequences of Unlawful Dismissal
In practice, companies often make the following mistakes when dismissing employees: allowing the matter to exceed the statute of limitations for disciplinary actions, mishandling the disciplinary process, or failing to include required participants in the disciplinary meeting, among other issues.
If the dismissal is declared unlawful by a competent State authority, the company will face the following legal consequences:
Case 1: The company must reinstate the employee
– Pay the employee their salary and make social insurance, health insurance, and unemployment insurance contributions for the days the employee was not allowed to work.
– Pay the employee an amount equivalent to at least two months’ salary as stated in the labor contract.
– If the original position or job specified in the labor contract is no longer available, but the employee wishes to continue working for the company, both parties must agree on amendments or additions to the labor contract.
Case 2: The employee does not want to return to the company
– The employer must pay the employee the same amounts as in Case 1.
– Provide severance pay in accordance with regulations.
Case 3: The company does not want to reinstate the employee, and the employee agrees
– The employer must pay the employee the same amounts as in Case 1.
– Provide severance pay in accordance with regulations.
– Pay the employee an additional amount equal to at least two months’ salary as stated in the labor contract.
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