Legal provisions on the dismissal of employees

I am the Director of a Construction Company. There are over 30 workers working for my company and the Labor Regulations is legally registered in accordance with the law provisions. It is showed in the Regulation that: "If workers steal the property of the company valued at over 5 million VND, he/she will be disciplined for dismissal." On 19 May 2018, I signed the labor contract with the 2-year term with Mr. Nguyen Van C. On January 1, 2019, Mr. C  stole the asset of the company valued at  2 million VND. So, in this case, can I fire Mr. C?

FDVN’s opinion:

Sincerely thank you for concerning our legal consulting service. We are glad to give you our advice on your question.

Firstly, the provisions of the law on  internal working regulations:

Pursuant to Article 119 of the Labor Code 2012:

“1. An employer employing 10 or more employees must have internal working regulations in writing.

2. The contents of internal working regulations must not be contrary to the labor law and other relevant laws. The internal working regulations contain the following principal contents:

a/ Working time and rest time;

b/ Order at the workplace;

c/ Occupational safety and hygiene at the workplace;

d/ Protection of assets and technological and business secrets and intellectual property of the employer;

e/ Employees’ violations of labor discipline, forms of dealing with violations of labor discipline, and material responsibilities.

3. Before the issuance of the internal working regulations, an employer shall consult the representative organization of the grassroots-level employees’ collective.

4. The internal working regulations must be notified to employees and their key contents must be displayed at necessary places in the workplace.”

Next, the Labor Regulations must be registered at the Department of Labor, War Invalids and Social Affairs where the enterprise is headquartered within 10 days from the date of issuance of the Labor Regulations. After being registered, the content of the company's Labor Regulations is fully compliant with the provisions of law.

Secondly, provisions of law about disciplinary dismissal:

According to Article 126 of Labor Code 2012 on the application of dismissal as a form of discipline: “Dismissal may be applied by an employer as a form of discipline in the following cases:

1. An employee commits an act of theft, embezzlement, gambling, intentional infliction of injury, use of drugs inside the workplace, disclosure of technological or business secrets or infringement of intellectual property rights of the employer, or acts which cause serious damage or threaten to cause serious damage to the assets or interests of the employer;

2. An employee who has been subject to the disciplinary measure of prolonging the wage rise period commits recidivism when the disciplinary record has not yet been written off or an employee who has been subject to the disciplinary measure of removal from office commits recidivism;

Recidivism means that an employee re-commits the same violation for which he/she has been disciplined while his/her disciplinary record has not yet been written off under Article 127 of this Code.

3. An employee has been absent from work without permission for a total of 5 working days within 1 month or 20 days within 1 year without plausible reasons.

Plausible reasons include natural disaster, fire, illness of the employee or his/her next of kin with certification by a competent health establishment and other events defined in the internal working regulations.”

According to Article 128, Labor Code 2012 on the prohibited acts when handling violations of labor discipline:

-           Infringing upon the body or dignity of the employee.

-           Applying a fine or wage reduction instead of a disciplinary measure.

-           Disciplining an employee who has committed a violation which is not defined in the internal working regulations.

Comparing with the above provisions, although the law stipulates that the theft of property belongs to one of the acts subject to dismissal discipline. However, it í stated in the Labor Regulations that: "If workers steal the property of the company valued at over 5 million VND, he/she will be disciplined for dismissal." Therefore, In this case, the theft of property is worth less than 5 million, so the company could not apply the dismissal discipline against Mr. C.

Above are the advice of FDVN Limited Law Firm base on studying law provisions and theories. We hope that our opinions would be useful.

Duong Hoai Thuong

FDVN Law Firm

FDVN LAW FIRM