Answer:
Pursuant to Article 3.2 of the Labour Code, Employers include enterprises, agencies, organisations, cooperatives, households, or individuals that employ labourers under LCs. Therefore, any enterprise that is not duly established under the law of Vietnam or does not directly employ labourers such as group or parent companies abroad will not be considered as an Employer who is governed by the labour law of Vietnam.
In principle, the group or parent company abroad will not have the authority to investigate the Employee working for a subsidiary in Vietnam having the legal status of the Employer. To make it lawful for the compliance department of the group or parent company abroad to conduct an investigation, in this case, the legal representative of the subsidiary must authorise the person in charge of such department prior to the investigation (the authorisation is understood as following the general principles and meeting the requirements of the civil law of Vietnam). Accordingly, the person in charge of this department will, on behalf of the subsidiary in Vietnam, conduct the procedure of an internal investigation to collect the evidence of the Employee’ faults to support for the decision on imposing a disciplinary action. Although there is no specific regulation regarding this issue, the investigation, in this case, can only be conducted within the enterprise territory since the application of any disciplinary action, in principle, must be based on the ILR, LC, and the Labour Code[1], which ILR by nature is documented to regulate the internal order of an enterprise.
However, it should be noted that the subsidiary with the legal status of the Employer will still be obliged to explain the evidence collected by the compliance department of the group abroad if the Employee files complaints, take legal actions against the decision on imposing disciplinary action to labour management agencies and competent Courts, and claim that the collected evidence is inaccurate[2].
[1] Article 127.3 of the Labour Code
[2] Article 122.1 (a) of the Labour Code
