Answer:
- Is it in accordance with labour law for the fact that some competent labour agencies refuse to allow the Employer to provide for the violations of using social networks and media in ILR as a form of discipline of the Employee?
Pursuant to Article 118.2 of Labour Code, the ILR must include the following main contents: a) Working time and rest time; b) Order at the workplace; c) Labour safety and hygiene at the workplace; d) Actions against sexual harassment in the workplace; sequence and procedures for dealing with sexual harassment in the workplace; dd) Protection of properties and business secrets, technological secrets and intellectual property of Employers; e) Cases in which reassignment of Employees are permitted; g) Employees’ breach of labour discipline and forms of dealing with breach of labour discipline; h) Material responsibility; and i) The person having the competence to take disciplinary measures.
Thus, Labour Code grants the Employer the right to establish their own regulations on labour disciplinary action in line with the legal violations of the Labour Code subject to the specific activity of each enterprise. In case of any dismissal as a disciplinary action, the Employer will be only entitled to dismiss the Employee if he or she commits any of the following acts: (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) Having sexual harassment actions at the working place as prescribed in the 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 (x) arbitrarily leaving work for 5 cumulative days in 30 days or 20 cumulative days in 365 days without legitimate reasons.
Article 118.2 of the Labour Code, however, does not restrict the Employer’ right to define by themselves what “the Employee committing serious damage or threatening to cause particularly serious damage to their assets and interests” are. Under the said provisions, the fact that the Employer will issue their own ILR on disciplining the Employee for his or her violations related to the use of media and social network, from a legal perspective, is not in breach of the Labour Code.
Therefore, the fact that some competent labour agencies in localities do not allow the Employer to include the said contents in the ILR is groundless and accordingly, enterprises should proactively persist in persuading the local labour agencies to agree to the same.
2. What should the enterprise do in such a case?
In a case where any local competent labour agency does not allow the aforesaid content to be included in the ILR, the Employer can solve by adding the content of violations related to the use of the Employee’ media and social networks into the LC when signing with the Employee. The Labour Code does not have any specific regulations on restriction of the content that is not prescribed in the LC, but only recognises the main compulsory content of the LC in Article 21.1 of the Labour Code. Therefore, the fact that the Employer proactively includes the regulations on the use of media and social networks in the LC to serve as a legal basis for imposing labour disciplinary actions on the Employee is not violated the labour law.[1]
In cases, the Employer wishes the ILR to include the regulations of using media and social networks in order to ensure the enterprise interest, the Employer may exercise its right to lodge a complaint according to law or initiate a lawsuit at the competent courts in accordance with the law on administrative procedure.
From experience, in comparison between lodging a complaint and initiating a lawsuit at competent labour agencies, the Employer should choose the form of complaint because this option is less costly and time-consuming than initiating a lawsuit at a competent court. Upon implementation of the complaint option, the Employer should pay attention to the following:
- The Employer will have the right to complain up to twice (the first one is to complain to the competent labour agency that has issued the decision on disagreeing to the said content of the Employer and the second to the immediate superior head of the competent person to settle the first complaint)[2];
- The complaint application must clearly state date of complaint; name and address of the enterprise; name and address of the complained agency; contents and reasons for complaints and documents related to the contents of the complaint and the request for settlement by the enterprise[3];
- In particular, the Employer should clearly state the basis and reason for the complaint to persuade the complained agency. The Employer may emphasise the nature and serious consequences the media and social networking could bring to the enterprise if the Employer does not incorporate these said measures into their ILR. For example, with the viral speed of the prevailing media and social networking, just one unpredictable behaviour or word of any Employee could have a lasting impact on the corporate credibility.
- If the Employer still disagrees with the decision on complaint resolution after two complaints or the complaint resolution has not taken place within its time limit (the time limit for the first complaint is for no more than 30 days or 45 days for complicated cases; the time limit for the second complaint must not exceed 45 days or 60 days for complicated cases as from the date of acceptance, the Employer may initiate a lawsuit against the complained agency at the competent court[4].
- Note that the statute of limitations for the Employer to exercise their right to complain is 90 days from the date of receipt of a decision/notice requesting an amendment of the ILR of the competent labour agency.[5] In case of non-resolution of the first complaint upon expiry of its time limit or from the date of receiving the first complaint resolution decision with which the Employer disagrees and wishes to make the second complaint, the Employer must do so within 30 days (or 45 days if the enterprise is located in remote, difficult-to-access areas) as from the expiry date of the first resolution[6].
[1] Article 127.3 of the Labour Code
[2]Article 7 of Law on Complaints 2011
[3]Article 8.2 of Law on Complaints 2011
[4]Articles 7, 28 and 37 of Law on Complaints
[5]Article 9 of Law on Complaints
[6]Article 33.1 of Law on Complaints
