Answer:
- When an Employer temporarily suspends an Employee’ job for over 15 days?
Pursuant to Article 128 of the Labour Code, the Employer is entitled to the right to temporarily suspend the Employee’ job if they consider the violation includes complicated circumstances and the Employee’ job continuation will prevent any verification; and the suspension is only carried out after consultation with the organisation representing the Employees at the grassroots level that the Employee is a member of. The suspension duration must not exceed 15 days and any special case must not exceed 90 days.
However, currently, no legal document specifies any special cases. Accordingly, the Employer may explain the special case by applying similarly to cases of extending the statute of limitations for disciplinary action in accordance with Article 123.1 of the Labour Code. In detail, according to Article 125.1 and 125.2 of the Labour Code, violations directly related to finance, properties, disclosure of technology and business secrets; theft, embezzlement, gambling, intentional injury, drug use within the workplace, disclosure of technology and business secrets, infringement upon enterprises’ intellectual property rights, acts of causing serious damage or threatening to cause extremely serious damage to the Employer’ assets and interests or sexual harassment in the workplace as prescribed in the ILR of the enterprise.
Furthermore, in reality, almost all special or complicated cases arise from the main reason that any process of evidence gathering is difficult or time-consuming. Therefore, the Employer should anticipate those cases and specify them in the ILR as special cases to carry out suspension of the Employee.
2. Is the Employer required to make salary advance during suspension if the Employee does not request any such advance?
As generally provided by the Labour Code, when the word “can” is employed, it means “right” and that legislators want to emphasize the compulsory nature of the subject so in this case, the Employer is obliged to pay the salary advance regardless if the Employee had requested it or not.
