- If an Employee has been charged with the crime of violation of gender equality rights according to Article 165 of the Criminal Code, then from the labour law perspective, will such an Employee still be subjected to disciplinary actions?
Criminal penalty and labour discipline are two entirely different areas regulated by two different codes i.e., the Criminal Code and Labour Code in particular. This means that being charged with a crime in the Criminal Code does not automatically exempt the Employee from being subjected to disciplinary actions in accordance with the Labour Code.
Technically, if the Employer can prove that the Employee’ act is a violation as prescribed in the ILR, or in the LC, or in the Labour Code, and the Employer has followed the procedures for handling labour discipline in accordance with the Labour Code, then the Employer is entitled to impose disciplinary actions against the Employee based on the Labour Code and the ILR, regardless such an Employee has been charged with a crime pursuant to the Criminal Code.
However, if the Employee is held in the temporary custody of or being detained, or is waiting for the verification results of a competent investigative authority with respect to any violation related to theft, embezzlement, gambling, deliberately inflicting bodily harm, using drugs in the workplace, disclosing trade secrets, technological know-how, or infringing the intellectual property rights of the Employer, or any act causing serious damage or threatening to cause extremely serious threat to the properties or interests of the Employer; or any act of sexual harassment at the workplace as prescribed in the ILR according to Article 125 of the Labour Code, then the Employer’ right to handle the labour discipline violation in such a situation would be restricted for a certain period. In particular, the Employer is not allowed to impose any labour disciplinary action during the period of investigation, only after this period has ended, the Employer can proceed with handling labour discipline in accordance with the Labour Code.
Another point of interest is that, if when the Employee is no longer held in temporary custody, detained or waiting for the verification result of the investigation authority, the statute of limitations for handling labour discipline violations has expired according to the Labour Code (the maximum statute of limitations for handling labour discipline is 6 months, from the date of violation; in cases where violations directly related to finance, properties, trade, or technological know-how of the Employer, the maximum statute of limitations is 12 months), then the statute of limitations will be extended by 60 days from the aforementioned expiry date to ensure the Employer’ right to handling labour discipline violations.
2. If the Employer is allowed to impose disciplinary actions in the above-mentioned case, can they dismiss the Employee?
According to Article 125 of the Labour Code, the Employee will be dismissed only if committing one of the following acts: (i) Theft; (ii) Embezzlement; (iii) Gambling; (iv) Deliberately inflicting injuries; (v) Using drugs in the workplace; (vi) Disclosing technological know-how, business secrets, or infringing the intellectual property rights of Employers; (vii) Causing serious damage or threatening to cause extremely serious damage to the properties or interests of Employers; (viii) Sexual harassment in the workplace which is prescribed in the ILR; (ix) Repeating violations for which the Employee was disciplined with deferral of wage increase or demotion and have not been absolved; or (x) Leaving work for a period of 05 cumulative days in 30 days, or for a total period of 20 cumulative days in 365 days calculated from the first day of leaving work without legitimate reasons.
Accordingly, in the case where the Employee is criminally charged with violating gender equality rights, but this violation is not among those that allow the Employer to take disciplinary action of dismissal in accordance with the Labour Code, the Employer has no right to dismiss the Employee. Therefore, the point to be noted here is, if the Employer wants to impose the disciplinary action of dismissal, they must prove that the Employee has committed one of the violations as prescribed in Article 125 of the Labour Code, provided that these acts have been prescribed in the ILR or LC. In addition, the Employer must strictly follow the procedures of handling labour discipline in accordance with the Labour Code. Only upon the satisfaction of these two above conditions, the Employer will have sufficient legal ground to dismiss the Employees.