According to the provisions of Labor Code No. 45/2019/QH14 (“Labor Code 2019”), effective from January 1, 2021, dismissal is the heaviest form in 04 (four) forms of labor discipline. And if not clearly understanding the provisions of the labor law on the conditions, processes, and legal procedures for dismissal, it will lead to serious legal consequences for the business, which is inevitable. Understanding this, Lac Duy & Associates gives you an overview of this process. Dismissal for disciplinary should go through the following steps:
Step 1: Determining the employee’s violation includes the following cases based on the provisions of Article 125 of the Labor Code 2019:
- The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
- The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
- The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved;
- The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Step 2: Holding a disciplinary hearing
Article 70 of Decree 145/2020/ND-CP guides disciplinary procedures as follow:
- In case an employee’s violation is discovered when it is committed, the employer shall prepare a violation record and inform the internal employee representative organization of which the employee is a member, the employee’s legal representative if the employee is under 15. In case an employee’s violation is discovered after it is committed, evidence of such violation must be gathered.
- Within the time limit for disciplinary procedures, the employer shall hold a disciplinary hearing as follows:
- At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. Make sure the participants receive the notification before the hearing takes place;
- Upon receipt of the employer’s notification, the mandatory participants shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case agreement cannot be reached, the employer shall make the final decision;
- The employer shall conduct the disciplinary hearing at the time and location mentioned in Point a and Point b of this Clause. In case any of the mandatory participants does not confirm his/her participation or is not present, the employer shall still conduct the hearing.
- Minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.
- Within the time limit for disciplinary procedures, the person having the power to initiate disciplinary procedure shall issue a disciplinary decision and send it to the mandatory participants.
Step 3: Pay salary and pay insurance books to employees:
According to Article 48 of the Labor Code 2019:
- Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may be extended, but shall not exceed 30 days.
- The employer has the responsibility to:
- Complete the procedures for verification of duration of participation in social insurance and unemployment insurance, return them and original copies of the employee’s other documents (if any);
- Provide copies of the documents relevant to the employee’s work if requested by the employee. The employer shall pay the cost of copying and sending the documents.
Thus, when applying the form of dismissal for discipline, enterprises need to pay attention to the above 03 (three) basic steps. If dismiss employees in contravention of the current law, resulting in serious consequences the possibility of being sued by that employee and having to bear great risks not only in legal terms according to Article 41 of the Labor Code 2019 but also related to the reputation of the enterprise in business and production activities.
To avoid risks and legal consequences arising, enterprises should try to fully comply with the provisions of the law on dismissal of employees, or can use legal services on labor disputes from professional law firms such as Lac Duy & Associates to receive timely support related to labor law cases such as labor discipline disputes, employee dismissal disputes, illegal unilateral termination of a labor contract dispute.