Question 159. With respect to the disciplinary action of dismissal, must an Employer prescribe in the ILR acts that can be considered as a violation of Articles 125.1 and 125.2 of the Labour Code?


Pursuant to Articles 125.1 and 125.2 of the Labour Code, an Employer may impose the disciplinary action of dismissal on any Employee who commits an act of theft, embezzlement, gambling, deliberately injuring others, using drugs in the workplace, revealing trade secrets, technological secrets, infringing the Employer’s intellectual property rights, causing serious damage or threatening to cause extremely serious damage to the Employer’s properties and interest; or sexual harassment in the workplace as prescribed in the ILR of the enterprise.

However, Decree 145/2020/NĐ-CP of the Government and relevant guiding by-law documents do not contain any regulations that require the Employer to specify or clarify the definitions of theft, embezzlement, trade secret revealing etc. in the enterprise’s internal regulations. However, in practice, the enterprise should make specific provisions for these issues to make it more transparent when applying the disciplinary action of dismissal to the Employee. For instance, the Employer can specifically prescribe in the ILR the value of assets that are stolen, embezzled or damaged (it does not matter whether the value is high or low) etc. and list the types of information and data that fall into the category of a trade secret in enterprise’s ILR.