Legally, in order to provide a legal basis for an Employer to discipline any Employee when he or she disclose the enterprise’s confidential information on the media and social networks, the Employer should first establish the specific and clear regulations in the ILR or in each LC on the definition of confidential information and what behaviours regarding confidential information will be considered as a violation of ILR. This is one of the principles which the Employer should strictly adhere to when deciding to proceed with disciplinary action against the Employee.
However, the definition of confidential information is not currently defined and explained in the Labour Code and written guidelines on its implementation. Article 125.1 of the Labour Code only refers to the term “business secret, technological secret”, which is stipulated as one of the cases where an Employer has the right to impose the disciplinary form of dismissal on any Employee who “disclose business secrets and technological secrets of an Employer”. With this provision, if the Employer invokes the regulations on violating confidential information as prescribed in the ILR or the LC for disciplinary action in the form of dismissal against the Employee, such disciplinary action will be deemed as inconsistent with Article 125.1 of the Labour Code.
To ensure that the Employer may exercise the right to discipline the Employee in accordance with the labour law, as experienced, the Employer should include the definition of “confidential information” as part of business secrets, technology secrets. In particular, in order for the “business secret” to be protected by law, the Employer needs to prove that it already had necessary measures to protect and prevent the business secret from being exposed and easily accessed by any third parties.
Another important issue in the principle of labour discipline is that the Employer also needs to collect evidence proving that the Employee has shown the enterprise’s information on media or social networks. Then, the Employer may have legal ground to take labour disciplinary procedure on the basis that the Employee has violated the obligation of “non-disclosure of business secrets, technology secrets” of the enterprise.
- After establishing the ILR of the enterprise (which may clearly specify the definition of confidential information as well as a relevant violation to be subject to labour discipline), the Employer must notify the Employee and announce the main contents of the ILR which contain regulations related to confidential information in necessary location at the workplace. So that, if the violation takes place, the Employee will not complain of not being informed about the contents in the ILR which includes the Employee’ obligation of protecting the confidential information of the enterprise; and
- Furthermore, as experienced, the Employer should, at the time of concluding the LC, also enter into a non-disclosure agreement with the Employee which will expressly regulate the indemnity liability of the Employee in case of revealing any confidential information of the enterprise as well as labour sanctions imposed on the Employee in case of violation. Such non-disclosure agreements may be separate or incorporated as part of LC by signing an appendix.
Article 84.3 of the Law on Intellectual Property 2005 amended and supplemented 2011