My company has just been established in Da Nang City. Since it’s a new company, the employees regularly violate the company’s regulations on the timework and wearing uniforms. So, in order to deal with these problems, my company has issued a new rule. Accordingly, a fine will be exposed to the employee who is late for work or violate the regulation on wearing a uniform. I would like to know if it is illegal to apply such a fine and the legal consequences if it’s illegal.
Thank you.
FDVN’s opinions:
Thank you for concerning FDVN’s legal services. Regarding your consulting requests, after studying the relevant legal documents, FDVN Law Firm would like to give you the following advice:
[1]. According to the provisions of Article 128 of the Labor Code 2012 on prohibited acts when handling violations of labor discipline:
“1. Infringing upon the body or dignity of the employee.
2. Applying a fine or wage reduction instead of a disciplinary measure.
3. Disciplining an employee who has committed a violation which is not defined in the internal working regulations.”
Therefore, the fine application is a prohibited act when handling workers' violations.
Besides, according to Article 125 of the Labor Code 2012 on disciplinary actions that employers may apply to employees:
“1. Reprimand.
2. Prolongation of the wage rise period for no more than 6 months; removal from office.
3. Dismissal.”
Thus, your company is allowed to apply the above disciplinary actions when the employees violate the company’s regulations.
Besides, a “Labor Regulations” may be established in the company clearly stating the disciplinary actions and process and registered to the Department of Labors, War Invalids, and Social Affairs of Da Nang City.
It is stipulated in Article 123 of the Labor Code 2012 on principles and order for handling violations of labor discipline:
“1. The handling of a violation of labor discipline is provided as follows:
a) The employer shall prove the fault of the employee;
b) The representative organization of the grassroots-level employees’ collective must participate in the handling;
c) The employee must be present and may defend himself/herself or ask a lawyer or another person to defend him/her; if the employee is under 18 years old, his/her parent or at-law representative must participate in the handling;
d) The handling of the violation of labor discipline must be recorded in the minutes.
2. It is prohibited to impose more than one form of discipline for a single violation of labor discipline.
3. For an employee who simultaneously commits more than one violation of labor discipline, it is only allowed to apply the highest form of discipline corresponding to the most serious violation.
4. Labor discipline may not be imposed for violations committed by an employee who is currently:
a) Taking sickness or convalescence leave or a leave with the employer’s consent;
b) Kept in custody or temporary detention;
c) Waiting for results of verification and conclusion of a competent agency for acts of violation specified in Clause 1, Article 126 of this Code;
d) A female employee and pregnant or on maternity leave; rearing a child under 12 months of age.
5. No labor discipline will be imposed on an employee who violates the internal working regulations while suffering a mental disorder or another disease which deprives him/her of the capacity to perceive or control his/her acts.”
Accordingly, disciplinary procedures shall be carried out in accordance with Clause 12, Article 1 of Decree No. 148/2018/NĐ-CP on amendments to the Government's Decree No. 05/2015/ND-CP dated January 12, 2015, which regulates the elaboration of some contents of the Labor Code:
“1. In the cases where an employee found committing a violation, the employer shall issue an offense notice, inform the employee representative organization (or the employee’s parent or legal representative if the employee is under 18) in order to hold a disciplinary meeting.
2. In the cases where an employee’s violation is discovered after it has been committed and before expiration of the time limit for penalty imposition and there is ample evidence of the violation:
a) The employer shall notify the persons mentioned in Point b and Point c Clause 1 Article 123 of the Labor Code of the content, time, and location of the disciplinary meeting before holding the meeting and only hold the meeting if it is attended by these persons.
b) Within 03 working days from the day on which the employer’s notification is received the recipients shall confirm their participation or refuses to participate and provide an explanation. In the cases where any of the recipients refuse to participate in the meeting or the explanation for not participating is not acceptable or fails to participate in the meeting as confirmed, the violator still has to face disciplinary actions.
3. It is mandatory to have the minutes of the disciplinary meeting, which have to be approved by the participants before the end of the meeting. The minutes shall bear the participants’ signatures. Any participant that refuses to sign the minutes must provide an explanation.
4. The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision.
5. The disciplinary decision shall be issued before the expiration of the original or extended time limit for penalty imposition specified in Article 124 of the Labor Code. The disciplinary decision shall be sent to the employee (or his/her parent or legal representative if the employee is under 18) and the employee representative organization.”
[2]. Administrative sanctions applied to the employer violating the labor discipline
According to Article 15 of Decree No. 95/2013/NĐ-CP on penalties for administrative violations against regulations on labor, social insurance, and overseas manpower supply, amended and supplemented by Clause 12, Article 1 of Decree No. 88/2015/NĐ-CP, the administrative fines applied in case where the employers violate the regulations of labor discipline are as follows:
“The employer that fails to announce or post the labor regulation at proper places at the workplace shall be liable to a fine of from 500,000 VND to 1,000,000 VND.
2. A fine of from VND 5,000,000 to VND 10,000,000 shall be imposed upon any employer that commits any of the following violations:
a) Failure to have written labor regulations when employing 10 employees or more;
b) Failure to register labor regulations with the labor authority of the province;
c) Using unregistered labor regulations, labor regulations that have been registered but have not taken effect, or expired labor regulations;
d) Taking disciplinary actions, providing damages against procedures and time limits prescribed by law.
3. The employer shall be liable to a fine of from 10,000,000 VND to 15,000,000 VND when committing one of the following acts:
a) Committing physical or mental assaults against workers when taking disciplinary actions;
b) Imposing fines or salary cut as disciplinary actions;
c) Impose penalties against the violations that are not mentioned in the labor regulation.
4. Remedial measures:
a) The employer that commits the violation mentioned in Point b Clause 3 of this Article shall be compelled to return the collect money or pay sufficient wages to workers;
b) The employer that commits any of the violations mentioned in Point b Clause 2 and Point c Clause 3 of this Article shall be compelled to reemploy the workers and pay them for the suspension period.”
Above is FDVN Law Firm's opinion for your consulting requests based on studying the relevant legal provisions. Hopefully, FDVN's advice would be helpful to you.
Legal advisor: Dinh Thi Thong
FDVN Law Firm
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