ISSUES WHEN APPLYING THE DISCIPLINARY MEASURE OF DISMISSAL

Thirdly, the employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance to the Labor Code. Thus, employees who have been disciplined with the measure of deferment of pay rise or demotion but not being absolved are fired. This means that employees who have been reprimanded in the past but has not been absolved are not allowed to apply this measure;[1]

Fourthly, the employee fails to go to work for 05 days in a period of 30 days, or for a total of 20 days in a period of 365 days from the first day he/she fails to go to work without acceptable excuses. Acceptable reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.

The handling of labor discipline is very important and directly affects the interests of employees. If it is not strictly regulated, it is very easy for the employer to abuse labor discipline. Therefore, Article 122 of the Labor Code 2019 stipulates the following principles when handling labor discipline:

- Disciplinary measures against an employee shall be taken in accordance with the following regulations:

• The employer is able to prove the employee’s fault;

•  The process is participated in by the representative organization which the employee is a member;

• The employee is present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present;

• The disciplinary process is recorded in writing.

- It is prohibited to impose more than one disciplinary measure for one violation of internal labor regulations.

- Where an employee commits multiple violations of internal labor regulations, he/she shall be subjected to the heaviest disciplinary measure for the most serious violation.

-  No disciplinary measure shall be taken against an employee during the period when: • The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;

• The employee is being held under temporary custody or detention;

• The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of the Labor Code 2019;

• The employee is pregnant, on maternal leave or raising a child under 12 months of age.

- No disciplinary measure shall be taken against an employee who commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control.

Thus, due to the serious nature of the dismissal discipline which can lead to the termination of the labor relationship, the law has strictly regulated about it, so the employer is not allowed to self-stipulate cases subject to dismissal discipline in addition to the cases specified in Article 125 of the Labor Code 2019. At the same time, the employer must strictly comply with the principles of labor discipline as prescribed by the law.

2. Some difficulties and obstacles in the application of legal provisions on disciplinary measure of dismissal

According to the current law, it can be seen that the law has foreseen most of the cases occurring in the labor discipline in general and the dismissal discipline in particular. The regulations are strict from the basis, measure, order, time limit for applying labor discipline... to ensure the legitimate rights and interests of the Employees. In general, the employers are in a higher position than the employees because they hold the means of production and have the right to direct the employees to perform the work under the labor contract. However, according to the current law, the application of dismissal still has many shortcomings for enterprises, specifically:

a.         In principle, enterprises are only allowed to dismiss employees in the cases specified in Article 125 of the Labor Code 2019

One of the cases of disciplining is the employee who commits acts “which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer", this regulation allows the employer to handle discipline even if there are no consequences. However, the practice of implementing this rule is not simple because the assessment of what is a particularly serious threat of damage by state management agencies in charge of labor is not consistent with that of the employer. For example, in businesses dealing in materials such as wood, coal, garments... these materials are easily ignited by smoking behavior at the workplace of employees, at that time, the consequences are unpredictable.

However, these enterprises cannot make this act of smoking in the workplace a case of dismissal in the labor regulations because the above behavior is not under the cases of dismissal discipline as prescribed in Article 125 of the Labor Code 2019. At the same time, from the point of view of the authorities, this behavior is only "likely" to cause damage if encountering unexpected bad situations that can cause fire and explosion, so there are not enough grounds to believe that this behavior threaten and cause serious damage in the workplace. According to the author, this is detrimental to the business if the unconscious behavior of the employee is capable of causing fire or insecurity in the workplace but there is no "prevention" sanction by stipulating a strict sanction of dismissal in the labor regulations,  so that once it has led to the potentially flammable level, the consequences suffered by the enterprise are too large, potentially leading to the stagnation of the operation of the business, then, the employee’s job is also at risk of not being able to maintain, so it is no longer meaningful to apply the dismissal in case there are consequences..

In addition, in the working environment, there are many other situations such as employees engaging, speaking badly about the company, affecting the internal feelings of all employees of the company, the incident continues many times. However, the Company cannot apply dismissal measures to these employees because these cases are not in cases of dismissal according to the current labor law.

b. Legal consequences when dismissing employees in violation of order and procedures

The compliance with the principles, order and procedures when disciplining employees in general and handling labor discipline in the measure of dismissal in particular is to ensure the rights and interests of employees. In labor relations, employees are in disadvantageous positions, because the employers hold the means of production, the rights to run the business, they easily abuse their rights when handling labor discipline. However, in many cases, the employees have violations of labor discipline, there are grounds for handling, but just because the employees do not follow the correct order and procedures, the decision on handling dismissal discipline must be canceled.

In practice, these cases cause many difficulties and disadvantages for enterprises. A typical example is a dispute between Ms. Le Thi Tuyet H and Innovation UI Co., Ltd. ("Company"), which was heard by the People's Court of Binh Duong province on August 21, 2019 about the labor dispute in the measure of dismissal[2]. According to the content of the case, during her work at Innovation UI Company, Ms. Le Thi Tuyet H had an act of making payroll and distributing wages in August, September 2017 to a worker named Tran Van S who had quit his job, then impersonated to receive the amount of 11,390,000 VND, causing loss of assets (money) of the Company. Although Ms. H and her legal representative admitted the behavior, the Court also stated: "... The company's handling of dismissal discipline for Ms. H is grounded. However, the Company handling labor discipline for Ms. H did not ensure the "principle and order of handling labor discipline" according to the provisions of Article 123 of the Labor Code, this issue has also been acknowledged by the legal representative of the Company in the process of resolving the case. Therefore, the Company must be obliged to comply with the provisions of Clauses 1, 2, 3 and 4, Article 42 of the Labor Code and Clause 3, Article 33 of the Decree No. 05/2015/ND-CP dated January 12, 2015 "detailing and guiding the implementation of some contents of the Labor Code".  Accordingly, the company must accept Ms. H back to work, pay her salary, pay social insurance and health insurance premiums for the days when Ms. H is not allowed to work plus at least 02 months' salary under the labor contract. Due to the violation of the order and procedures for disciplining employees, the Court accepted Ms. H's petition, forcing Innovation UI Co., Ltd. to compensate Ms. Le Thi Tuyet H the following amount: The salary for the days when Ms. H is not allowed to work at the Company is: 16 months x 7,000,000 VND/month = 112,000,000 VND; 02 months salary under labor contract is: 7,000,000 VND/months 02 months = 14,000,000 VND. In total, the Company must compensate Ms. H an amount of 126,000,000 VND.

Thus, it can be seen that, although Innovation UI Company proved the fault of the employee, Ms. H embezzled the Company's property and admitted her behavior, there was actual damage to the Company but only due to the failure to apply dismissal that Innovation UI company had to compensate Ms. H a large amount of money, causing damage to the company.

On the other hand, according to Article 33 of Decree No. 05/2015/ND-CP (which expires on February 1, 2021), which is now replaced by Article 73 of Decree No. 145/2020/ND-CP (effective from February 1, 2021), it is not necessary to distinguish employers from illegally handling labor discipline in terms of content or form, one of the consequences of the illegal dismissal is to accept the employee back to work under the signed labor contract. Although this provision is intended to ensure the rights and interests of employees when their rights are violated in labor relations, however, in terms of enterprises such as Innovation UI Company, in the case of Ms. H mentioned above, H's dismissal is suitable, without injustice. If the Company only violates the disciplinary procedures and must accept Ms. H back to work, the Company only must accept her back as "forced", the Company will not be able to feel secure and comfortable when continue to employ the employees like her. the contract is expressed by the voluntariness of the parties, the parties must seriously perform their rights and obligations. The reluctance of employees to take back their employees will not ensure harmony in labor relations at the workplace, and it will be difficult for a sustainable relationship to exist in the working environment.

c. The issue of handling labor discipline when women are pregnant, maternity leave or raise children under 12 months of age

Clause 4, Article 122 of the Labor Code 2019 stipulates that the employers may not discipline employees in the cases of:

• Illness or convalescence; or on other types of leave with the employer’s consent;

• Being held under temporary custody or detention;

• Waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of the Labor Code;

• The employee is pregnant, on maternal leave or raising a child under 12 months of age.

Failure to discipline employees in the above cases is to ensure the rights of employees when they are in a disadvantaged situation, unable to protect their own interests. However, in cases where the employee is a pregnant woman, on maternity leave or raising a child under 12 months of age, violating the discipline of cases related to the disclosure of business secrets and technological secrets, this regulation is detrimental to the employer. Although this is a time when employees may have difficulties, need a job, need income to take care of and raise a small child, the time from being pregnant to raising a child under 12 months is a long time. If there is a continuous violation of labor discipline and no measure is taken, it is unreasonable, the company can not be assured that the employees are still working in their former positions while they have disclosed business secrets, technology secrets of the company, can not guarantee that during this time they will not continue to violate discipline but still can not dismiss them as prescribed by law.

d. Cases where the employees commit many violations of labor discipline

According to Clause 3, Article 122 of the Labor Code 2019, when the employee simultaneously commits many disciplinary violations, the employer may only apply the highest measure of discipline corresponding to the most serious violation. This means that if an employee commits many disciplinary violations, his/her highest disciplinary responsibility is only equal to that of the employee only one violation, which corresponds to the most serious behavior of the previous person. This regulation is both unfair and does not have a deterrent meaning for employees who commit many disciplinary violations.

3.         Some proposals to better implement the principle of employer protection in the labor discipline regulations

By analyzing some obstacles in the application of the current law on labor discipline in our country, from a personal point of view, the author proposes some recommendations with the desire to improve the law and protect the interests of enterprises in applying the disciplinary measure of dismissal as follows:

- In Article 125 of the Labor Code, it is necessary to amend, supplement and expand the legal provisions in the direction of allowing employers to flexibly apply the measure of dismissal discipline when employees commit acts that are potentially unsafe or cause fire in the workplace for industries producing products that are at risk of fire and  explosions and behaviors related to workplace culture that cause disunity, misunderstanding, insult to the honor and reputation of individuals and businesses at the workplace,...

- It is necessary to stipulate that if the enterprise has not followed the correct disciplinary process of dismissing the employee but proving the employee's fault and having actual damage due to the violation of discipline, the employer must not accept the employee back to work.

- It is necessary to further stipulate the right of the employer to be able to transfer the employees’ position in case they violate labor discipline during pregnancy, maternity leave and raising children under 12 months of age to ensure that the employees fail to continue to violate discipline during the time they are not disciplined.

- It is necessary to stipulate the principle of applying disciplinary responsibility in a stricter way in case the employee concurrently commits many disciplinary violations, for the case where the employee has 03 or more violations that have the same nature and the same level of discipline, there should be a regulation to apply a discipline higher than 01 level to ensure the deterrence and fairness of other employees with only 01 violation of labor discipline with the corresponding level.

Currently, the country's economy is in the integration period, attracting many domestic and foreign investors, which means that the labor relations between employees and employers also increases and changes. In line with the general trend of the world to create a flexible labor market, attracting domestic and foreign enterprises to invest and use Vietnam's abundant labor resources, in addition to protecting the rights and interests of employees, the law also needs to balance the rights and interests of employers, give them flexibility in the process of managing and operating enterprises to achieve high efficiency./.

LIST OF REFERENCES

1. The Labor Code 2019

2.Decree No. 05/2015/ND-CP dated January 12, 2015 detailing and guiding the implementation of some contents of the Labor Code

3. Decree No. 145/2020/ND-CP detailing and guiding the implementation of some articles of the Labor Code on labor conditions and labor relations.

4. Judgment No. 07/2019/LD-PT dated August 21, 2019 on labor disputes in the form of dismissal of the People's Court of Binh Duong province.

Link: https://congbobanan.toaan.gov.vn/2ta334239t1cvn/chi-tiet-ban-an

5. The article: Dispute resolution for dismissal of employees

Link: http://www.lapphap.vn/Pages/TinTuc/210373/Giai-quyet-tranh-chap-ky-luat-sa-thai-lao-dong.html

6. The article: Unlawful dismissal discipline and legal consequences of unlawful dismissal

Link: http://luathopdong.vn/ky-luat-sa-thai-trai-phap-luat-va-hau-qua-phap-ly-cua-sa-thai-trai-phap-luat/n1240.html