Answer:
Pursuant to Article 123.1 of the Labour Code, the maximum statute of limitations for handling a violation of labour discipline is 6 months from the dates of violation; as for the case of any violation directly related to finance, properties, technological know-how, business secrets of the Employer, the maximum period is 12 months. Other than the said regulations, the Labour Code has not provided any by-law document detailing how to identify the date of the violation to calculate the statute of limitations for handling a violation of labour discipline; and does not provide any definition of a violation that directly relates to the finance, properties, technological know-how, business secrets of the Employer that a longer maximum statute of limitations for handling violations might be implemented (12 months). Therefore, the interpretation and application of the laws, in this case, will be depended largely on opinion of the local competent labour management agency or the competent Court if a labour dispute arises. To ensure that the decision on imposing disciplinary actions is issued within the statute of limitations, the Employer should take note of the following points:
- Regarding how to identify the date of violation
In practice, it is very difficult to identify the date of violation, especially for the enterprises which do not use the support of machines or technologies to manage data, properties and maintain order at the workplaces. Accordingly, the Employer often fails to immediately detect the Employee’ violation, or the exact time of the violation could not be extracted. Therefore, in cases where either the Employer or the Employee is unable to determine the date of violation, the Employer should make the minutes to record the Employee’ violation at the time of detection and use this time as a basis for calculating the statute of limitations for handling labour discipline. However, the legal risk, in this case, is that the Employee may indicate a different date of violation to re-determine the statute of limitations. Then, the decision on imposing disciplinary action may be considered illegal because it has been issued after the statute of limitations has expired. The Employee will have to prove the date of violation that he or she has determined in case that a complaint or a legal action is lodged with a competent labour management agency or Court. To minimise the unforeseeable legal risk, the Employer should equip them with a strict mechanism to manage human resources, data systems, cameras etc. to stably maintain order at the workplace.
2. Regarding how to identify a violation that is considered directly related to enterprise’ finance, properties, technological know-how, business secrets
In practice, the definition of violations being directly related to enterprises’ finance, properties, technological know-how, business secrets are always an important factor that Employers need to determine when establishing the ILR, as it not only helps to determine the statute of limitations for handling violations but also serves as the legal ground to impose the disciplinary action of dismissal on the Employee. Therefore, to determine which violations are directly related to the finance, properties, technological know-how, business secrets, Employers should include a specific definition of the enterprises’ properties, technological know-how, business secrets in the ILR registered with the local competent labour management agency to ensure that their decisions on imposing disciplinary actions are issued in accordance with law
