Answer:
Pursuant to the regulations of the Labour Code an Employer has the right to apply one of the following four forms of labour discipline if an Employee commits an act of violation specified in the IRL of the enterprise including reprimand, salary raise prolongation of fewer than 06 months, removal from office and dismissal. For the form of dismissal, since it is the highest form of discipline, the labour law only allows the Employer to apply this form of discipline when the Employee commits one of the following acts of violation: (i) Theft; (ii) Embezzlement; (iii) Gambling; (iv) Deliberately injuring others; (v) Using drugs in the workplace; (vi) Revealing trade secrets, technological know-how, infringing the Employer’s intellectual property rights; (vii) Causing serious damage or threatening to cause extremely serious damage to the Employer’s properties and interests; (viii) Sexual harassment at the workplace as prescribed in ILR; (ix) Having been put under the discipline of prolonged pay raise but repeat the violations within the disciplinary period, or dismissed but repeat the violations; or arbitrarily leaving work for 5 cumulative days in 30 days or 20 cumulative days in 365 days without legitimate reasons.
Therefore, the Employer may not apply the form of dismissal to the Employee if his or her violation does not fall into one of the aforesaid acts (even if the ILR provide for the labour discipline of such act of violation). With respect to the remaining forms of labour discipline, the labour law allows the Employer to make self-determination of the offences and the appropriate form of disciplinary action based on the nature and extent of each act of violation in the corporate context because these forms of labour discipline do not make the Employee lose his or her job.
In applying the said provisions to the situations in which the Employee has committed acts of violation relating to the media and social network, the Employer is legally entitled to specify one of the said four disciplinary forms for violations relating to the media and social network of the Employee on the basis of considering the extent and consequences of these acts.
Experience shows that some Employers often apply the lowest level of labour discipline, reprimand for the first violation without any damage to the enterprise. If the severity is higher, depending on the case, the Employer may apply a higher form of discipline (removal from office or salary raise prolongation of up to 06 months) or even dismissal (if such act of violation falls into one of the acts whereby the Employer is entitled to apply the form of removal from office to the Employee defined in Article 125.1 of the Labour Code). An important note is that, as violations related to the media and social network might be expressed in various forms of violation, the Employer must clearly and specifically define the characteristics, nature, and extent of each offence to make solid legal grounds for imposing disciplinary actions on the Employee.
