In June 2018, our company established a permanent labor contract with Mr. Le Minh D with the position of a driver. However, from early 2019, Mr. D has not gone to work under the contract. Our HR Department tried to contact him but he either answered the phone or announced us. I would like to be advised if we could dismiss Mr. Le Minh D and the procedure for dismissal. Sincerely thank you.
FDVN’s opinion:
Sincerely thank you for your concerning our legal consulting service. We are glad to give you our advice for your question.
[1]. Mr. Le Minh D shall be dismissed by the employer for his actions.
Mr. Le Minh D has left a job without an acceptable explanation or announcement several days in a month. Thus, you shall be allowed to impose dismissal on Mr. Le Minh D in accordance with Clause 3 Article 126 Labor Code 2012 regarding to applying dismissal and Article 31 of Decree No. 05/2015/NĐ-CP amended with Clause 13 Article 1 of Decree No. 148/2018/NĐ-CP:
“Article 31. Dismissal imposed on employees being absent from work without permission
1. In the following cases, the employer may dismiss an employee that leaves a job without an acceptable explanation as specified in Clause 3 Article 126 of the Labor Code:
a) The total leave period is 05 working days in up to 01 months (30 days) from the first leave day;
b) The total leave period is 20 working days over up to 01 years (365 days) from the first leave day.
2. Dismissal may be applied by an employer as a form of discipline for an employee quitting jobs with the following plausible reasons:
a) Natural disasters, conflagration;
b) Illness of employees or their mother, father, adoptive mother, adoptive father, mother-in-law, father-in-law, husband, wife, children or adopted children with certification by a health facility founded and operated as prescribed in law
c) Other cases defined in the labor regulations.”
[2]. Principle for applying dismissal is in accordance with Article 123 Labor Code 2012:
- The employer shall prove the fault of the employee;
- The representative organization of the grassroots-level employees’ collective must participate in the handling;
- 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;
- The handling of the violation of labor discipline must be recorded in the minutes.
- It is prohibited to impose more than one form of discipline for a single violation of labor discipline.
- Labor discipline may not be imposed for violations committed by an employee who is currently: Taking sickness or convalescence leave or a leave with the employer’s consent; Kept in custody or temporary detention; A female employee and pregnant or on maternity leave; bearing a child under 12 months of age.
- 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.
[3]. The order and procedure for dismissal:
a. Legal basis:
- Article 123 Labor Code 2012;
- Article 30 of Decree No. 05/2015/ND-CP amended with Clause 12 Article 11 of Decree No. 148/2018/ND-CP regarding the procedures for handling violations against the labor discipline.
- Article 12 of Circular No. 47/2015/TT-BLDTBXH regarding to organizing meetings about handling of violations against labor discipline.
b. The order and procedure:
Step 1: Making a record of violation and notifying the representative organization of the grassroots-level employees’ collective.
At the right time when detecting employee violating labor discipline, employers shall record the violation in minute and notify to the representative organization of the grassroots-level employees’ collective about handling the violation.
Step 2: Notifying about the disciplinary meeting dismissing employee.
The employer informs the content, time and location of the labor discipline meeting to the participants including:
- Representative organization of the grassroots-level employees’ collective;
- Employee and his/her attorney or advocate pleading for him/her (if any).
Ensuring that such participants receive notification before the meeting takes place and conducting a labor discipline meeting when they attend in accordance to the notification.
The participants shall confirm their attendance at the meeting within 03 working days from the date of receiving the notification. In case of being absent, they shall inform the employer and state the reason for their absence.
If the employer has noticed in writing 03 times, but one of the participants is absent (excluding the case that the meeting is postponed or cancelled or the meeting’s place is changed, the employer shall conduct the meeting unless the employee is in time that labor disciplinary measures may not applied as specified in clause 4 of Article 123 of the Labor Code.
Step 3: Organizing meetings about dismissal:
The meetings for labor discipline must be made in minutes and such minutes must be agreed by the participants before the end of the meeting.
The minutes must be signed by all meeting participants. If one of the participants attended the meeting without signing the minutes, the reason for such refusal must be clearly provided.
Step 4: Making a decision on handling dismissal imposed on the employee.
The persons concluding contracts shall be the persons entitled to make a decision on handling dismissal imposed on the employee.
The decision to handle violations of labor discipline to employee must be issued within the statute of limitations of handling violations of labor discipline or prolonged duration of the statute of limitations of handling violations of labor discipline (The statute of limitations for handling a violation of labor discipline is 6 months from the date the violation is committed. The statute of limitations for handling a violation of labor discipline directly related to finance and assets or disclosure of technological or business secrets is 12 months).
Step 5: Decision on handling dismissal imposed on employee shall be sent to the employee and representative organization of the grassroots-level employees’ collective.
Above are the advice of FDVN Limited Law Firm base on studying law provisions and theories. We hope that our opinions would be useful.
Legal Expert: Nguyen Thi Suong
FDVN Law Company
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