Answer:
Currently, there are many companies unofficially providing the private detective and investigative services for individuals and organisations. The development of the private detective service arises from the enormous demand in the Vietnamese market. However, enterprises, when considering the use of this service, should note that the law has not provided legal framework for private detective activities, in other words, the detective has not been recognised as a legitimate business under the law of Vietnam. In reality, most companies providing the private detective and investigative services in Vietnam are doing business under the nominal business of information provision service, security service and so on in accordance with the Law on Enterprises.
On the other hand, pursuant to Article 21 of the Constitution 2013 and Article 38 of the Civil Code, personal information is inviolable and protected by law. Personal information must be collected with the consent of the persons concerned, except for the collection or announcement of information or materials are made according to the decision of a competent agency or State authority. Since companies providing detective and investigative services are not the legal entities that are recognised by law to have the function and authority to collect information, the Employer’s use of the detective service and the collection of Employee’ personal information accordingly may be considered as a legal violation, violating the Employee’ privacy rights if the Employee does not give consent to this. Therefore, the Employer should carefully consider the legal aspect before making any decision of using detective and investigation services from any third party.
Regarding the collection of evidence of the Employee’ violations, pursuant to Article 122.1(a) of the Labour Code, one of the principles in imposing any disciplinary action on the Employee is to prove that the Employee has actually committed an act of violation. Proving could be understood that the Employer must collect and provide the evidence and materials recording the Employee’ corresponding violations which will be the legal ground for imposing a suitable disciplinary action against him or her. On the other hand, the evidence and materials may be used by the Employer to make their arguments at Courts or local competent labour management agencies if there is any dispute or legal action concerning the decision on imposing disciplinary action.
Currently, there are no regulations relating to the procedure for verifying and collecting evidence as well as regulation on forms and conditions of the evidence which are used to impose disciplinary actions. However, the Employer can refer to the regulations on evidence prescribed in the Civil Procedural Code. Pursuant to Articles 94 and 95 of the Civil Procedural Code, valid evidence may include:
(i) Readable materials (originals or notarized copies or certified true copies by competent agencies or organisations);
(ii) Audible, visible materials (must be presented together with the explanatory documents about the origin of such materials which are recorded by the presenter themselves, or with the written confirmation of the person providing the presenter with such materials about the origins of those materials or documents related to such audio and/or video recording);
(iv) Electronic data (exchange of electronic data, electronic invoices, electronic mails, telegram, telegraphy, facsimile, and other similar forms);
(v) Involved parties’ testimonies, witnesses’ testimonies (recorded in writing or by audio-tapes, audio-discs, or video-tapes or discs or other audio or image recording devices);
(vi)Appraisal results;
(vii) On-site appraisal minutes;
(viii) Result of property evaluation;
(ix) Written records of legal facts or acts that are established by in-charge persons (e.g., meeting minutes made and certified by the bailiff); and/or
(x) Notarised and certified documents.
In addition, organisations, agencies, and individuals can collect evidence by themselves[1] by: (i) collecting readable, audible, or visible materials, electronic data, exhibits concerning the case; and/or (ii) identifying witnesses and obtaining their confirmations. Furthermore, evidence could be collected by requesting organisations, agencies and individuals to make copies of or provide relevant documents and request the People’s Committees at the commune/ward level to certify the witnesses’ signatures. Particularly for the case where disputes are brought to the Court for settlement, agencies, organisations, or individuals may request the Court to collect evidence and documents if they cannot do it by themselves; and may also request the Court to issue decision on appraisal and assets valuation for the purpose of evidence collection. By performing the tasks as mentioned above, agencies, organisations or individuals can verify and collect the valid evidence as listed.
As such, the Employers may (or duly authorise a third party – the authorisation will follow general principles and meet requirements of the civil law, regarding authorising the private detective service, in particular, the Employer must take into account the issue of inviolable personal information as presented above) collect evidence which is used for the purpose of considering and imposing disciplinary actions on the Employee. In practice, the Employer may work with the Employee and/or the persons who have witnessed/acknowledged the case and make minutes of these working sessions or request these persons to prepare and submit written declarations/affidavits regarding the case for the purpose of evidence collection. In addition, to strengthen the validity of the collected evidence, the Employer should consider using the bailiff service. The Bailiffs will establish minutes of the working sessions between the Employer and the Employee, and/or record the fact that the Employee and the persons who witnessed/acknowledged the case have submitted their declarations on the case to the Employer as mentioned above.
In addition, if there is a sign that the Employee commits one of the following acts of: theft, embezzlement, gambling, deliberately injuring others, using drugs in the workplace, revealing trade secrets, technological know-how, infringing the Employer’s intellectual property rights, causing serious damage or threatening to cause extremely serious damage to the Employer’s properties and interests, committing acts of sexual harassment in the workplace as prescribed in the ILR, as stipulated in Articles 125.1 and 125.2 of the Labour Code, the Employer has the right (and is obliged) to report these violations to the competent agencies which have the right to conduct an investigation (e.g. the public security agencies) so that they will receive and handle the case in accordance with the law. Accordingly, competent agencies may investigate the case and collect relevant evidence and materials. In this case, the Employer must wait for the investigation results from the competent State agencies which will verify and give conclusions on the Employee’ violations before imposing disciplinary actions on the Employee[2].
Last but not least, the Employer should be aware that in the process of handling labour discipline violations, they must ensure that the Employee’ violations have been prescribed as corresponding violations in the ILR which have been registered with the local labour management agency, or have been agreed in the LC, or have been specified in detail in the Labour Code[3]; and the Employer must follow fully and properly the procedure for imposing disciplinary actions in accordance with the Labour Code[4].
[1] Article 97.1 of the Civil Procedural Code
[2] Article 122.4 (c) of the Labour Code
[3] Article 127.3 of the Labour Code
[4] Article 122 of the Labour Code and Article 70 of Decree 145/2020/ND-CP of the Government dated 14 December 2020
