Answer:
- Can an Employer impose a disciplinary action on an Employee when the Employee makes an objection to the conclusion at the meeting on labour discipline and during the period which the Employer has not issued the Decisions on imposing disciplinary actions?
Pursuant to Article 70 of Decree 145/2020/NĐ-CP of the Government, upon imposing disciplinary actions on any Employee who has violated the ILR, the Employer must make a record of such violation and notify the organisation representing the Employees at the grassroots level of which the Employee is a member. If the Employer finds out the violation after such violation has occurred, the Employer shall collect evidence to prove such violation conducted by the Employee. Then, the Employer must notify the organisation representing the Employees at the grassroots level about the content, time, location to be held the meeting on labour discipline, the full name of the disciplined Employee and the violation at least 05 working days before the meeting on labour discipline.
1.1 The Employee to raise objections to the disciplinary action proposed in the meeting by not attending the meeting
Pursuant to Article 70.2 of Decree 145/2020/NĐ-CP of the Government, when receiving the notice of the Employer on the disciplinary meeting, the participants must confirm their presence in the meeting. If one of the participants cannot attend the meeting at the notified time and location, the Employer and the Employee may agree on the change of time and location of the meeting. If the Employee keeps not confirming his or her attendance or do not show up at the disciplinary meeting, the Employer may still conduct the meeting of labour discipline against the Employee. Therefore, in general, the Employer has the right to conduct labour discipline procedure regardless of Employee’ attendance at the disciplinary meeting, provided that the Employee is not subject to cases where disciplinary actions are prohibited in accordance with Article 122.4 of the Labour Code.
1.2 The Employee to raise objections to the disciplinary actions proposed in the meeting by not signing on the meeting minutes
Pursuant to Article 70.3 of Decree 145/2020/NĐ-CP, the disciplinary meeting must be recorded in written meeting minutes and such meeting minutes must be confirmed by the attendants before the end of the meeting. The minutes must be signed by the attendants, including the organisation representing the Employees at the grassroots level of which the Employee is a member, the Employee, the minutes’ writer, and other attendants (if any). If the Employee disagrees the conclusion of the disciplinary meeting and does not agree to sign the minutes, he or she must state the reason.
The labour law does not provide any guidance in the case where the Employee does not agree to sign the minutes or state the reason. Therefore, the Employer may ask one or two other individuals who have independent rights and interests to be the witnesses and sign the minutes of the disciplinary meeting.
2. Legal risks in the case where the Employer has issued the decisions on imposing disciplinary actions which are objected by the Employee
Pursuant to Article 131 of the Labour Code, if the Employees disagrees with the disciplinary actions imposed on him or her, he or she has the right to: (i) complain to the Employer or the local competent labour agency; or (ii) request settlement of labour dispute in a competent court in accordance with the legal proceedings. It is evident that labour law allows the Employee to exercise the right to make complaints or initiate lawsuits against the Employer’s decisions on imposing disciplinary actions in any circumstances regardless of whether such a decision is considered to have sufficient legal ground and to be issued and performed in accordance with the law or not.
2.1 The case where the Employee requests settlement of labour dispute in a competent court
Pursuant to Article 188.1(a) of the Labour Code, an individual labour dispute must go through the mediation process conducted by labour mediators before requesting a competent court to settle the labour dispute on imposing the following forms of labour discipline: – Reprimanding; – Deferral of wage increase; or – Demotion.
Therefore, the Employee may directly request competent court to settle the labour disputes on imposing the disciplinary action of dismissal without going through the mediation process conducted by labour mediators.
2.2 The case where the Employee makes complaints to the Employer
Pursuant to Article 15 of Decree 24/2018/NĐ-CP of the Government, the Employee will make the first complaint to the Employer and the Employer will handle the complaint within 30 days from the date of receipt of the complaint[1]. If the Employee still disagrees with the decision on handling the first complaint made by the Employer or the complaint is not settled within the said time limit, the Employee may exercise the right to initiate a lawsuit as above-mentioned[2] or make the second complaint to the Chief Inspector of the provincial/municipal DOLISA where the Employee is working.
If the Employee decides to make the second complaint on the disciplinary decision, the Employer is obliged to explain the legality and appropriateness of the complained decision at the Chief Inspector’s request, and strictly comply with the effective decision on settlement of the complaint[3].
It is evident that labour law allows the Employee to make complaints to or initiate a lawsuit against the Employer if he or she disagrees with the disciplinary decision that the Employer has issued. Therefore, to avoid the legal risks associated with the application of labour discipline, the Employer must always ensure that the acts being subject to disciplinary decisions have already been prescribed in the ILR or agreed in the LC or have already been specified in detail in accordance with the labour law[4]; and at the same time, labour disciplines must follow the principles and procedures in accordance with the labour law, and the person who decides to impose the disciplinary action must have the authority to do so.
If, on the other hand, the judgment of a court or the conclusion of a State authority is different from the disciplinary decision, the Employer must cancel such decision or re-issue a new decision to replace the previous one. Simultaneously, the Employer must also restore the right and interest of the Employee which is affected by the disciplinary decision. For the case where the disciplinary action of dismissal is imposed illegally, the Employer is obliged to reinstate the Employees under the LC, and pay salary, SI and HI premiums for the days when the Employee has not been allowed to work plus at least 02 months’ contractual salary in accordance with Article 41 of the Labour Code.
[1]Article 20 of Decree 24/2018/ND-CP of the Government dated 27/02/2018
[2]Article 10.2 (a) of Decree 24/2018/ND-CP of the Government dated 27/02/2018
[3]Article 11.2 (dd), (e) of Decree 24/2018/ND-CP of the Government dated 27/02/2018
[4]Article 127.3 of the Labour Code
