Answer:
- According to Article 124 of the Labour Code, there are the following forms of disciplinary action: (i) reprimand; (ii) deferral of salary increase for up to 06 months; (iii) demotion; and (iv) dismissal. When applying one of these forms of disciplinary action, the Employer must perform and comply with rules and procedures for application of disciplinary action in accordance with the Labour Code. In detail, Article 70 of Decree 145/2020/ND-CP of the Government prescribe that:
- At least 05 dates prior to the meeting for application of labour disciplines, the Employer must give notices about the meeting agenda, time, and location, name of the disciplined Employee, and acts of violation to concerned Employee, parents, or the legal representative of under-15-year-old.
The meeting must be minuted, and the minutes must be confirmed by the attendees before the meeting ends. The meeting minutes must be signed by all attendees and the recorder. If one of the attendants does not agree to sign the minutes though they have attended the meeting, their name, and the reason for this must be stated.
Note that the person having authority to sign the disciplinary decision against the Employee is either the one who has authority to sign the LC, or the specifically authorised person being mentioned in the enterprise’s ILR; and
- The disciplinary decision must be issued within the statute of limitations for applying disciplinary action or the extended statute of limitations stated in Article 123 of the Labour Code, and it must be sent to all attendants of the disciplinary meeting.
When imposing a disciplinary action in whatever forms, as prescribed by the above regulations, the Employer must comply with the said procedure including the steps of giving written notices to the required attendants, holding the meeting, and making the decision on imposing disciplinary actions; however, it is actually hard for the Employer to comply strictly with these steps, especially the ones with a great number of Employees. The decisions on imposing disciplinary actions must be made in writing within the statute of limitations. Accordingly, the form of oral reprimand is no longer in line with the new Labour Code, and obviously, this is not a basis for the Employer to apply a stricter form of labour discipline on the Employee.
Therefore, the Employer cannot discipline the Employee by oral reprimand. Instead, the Employer must rather give written notices to the Employee and the organisation representing Employees at the grassroots level of which those the Employee is a member before holding the meeting for application of labour discipline. The meeting for application of labour discipline must be minuted with all the attendants’ signatures (those who refuse to sign the minutes must indicate their names and reasons). Referring to the meeting minutes, the Employer will consider whether to issue the decision on imposing disciplinary actions (reprimand in writing or apply other forms of labour discipline) in accordance with the ILR).
Besides, the Employer should take note of the authority to issue the decision on imposing the disciplinary action. According to Article 70.4 of Decree 145/2020/ND-CP of the Government, the person having authority to initiate the disciplinary procedure shall issue the disciplinary decision. Thus, a disciplinary decision shall be issued by any of the following persons: (i) the legal representative of the enterprise or his or her authorised representative who is specifically authorised to sign the LC; or (ii) the person specifically authorised prescribed in the ILR[1].
[1]Article 69 of Decree 145/2020/ND-CP of the Government
