Procedures for employee dismissal in Vietnam

During the implementation of the labor contract, if the employee violates discipline, the employer has the right to apply disciplinary measures to handle the employee. Dismissal is the highest and most severe form of labor discipline that employers are entitled to apply to employees. In this article below, Viet An Law will advise on procedures for employee dismissal in Vietnam according to the provisions of the law.

Legal basis

• Labor Code 2019;
• Decree 145/2020/ND-CP details and guides the implementation of several articles of the Labor Code on working conditions and labor relations.

What is employee dismissal?

Dismissal is one of four forms of labor discipline as prescribed in Article 124 of the Labor Code 2019. It can be understood that the dismissal of an employee is the highest form of labor discipline that the law allows employers. Employers have the right to apply sanctions against employees who violate discipline to remove from the employee collective those employees who do not have a sense of discipline and seriously violate corporate regulations.

The disciplinary form of dismissal is applied by the employer in the following cases according to the provisions of Article 125 of the Labor Code 2019:

• Employees commit acts of theft, embezzlement, gambling, intentionally causing injury, or using drugs at work;
• Employees who commit acts of disclosing business secrets or technological secrets, infringing on intellectual property rights of the employer, or committing acts of causing serious damage or threatening to cause particularly serious damage regarding the property, interests of the employer or sexual harassment in the workplace as stipulated in the labor regulations;
• Employees who are disciplined with an extended salary increase period or demotion but repeat the offense while the disciplinary action has not been removed.

• The employee voluntarily quits his job for 5 cumulative days within 30 days or 20 cumulative days within 365 days from the first day of voluntarily quitting his job without a legitimate reason.

Processing authority

According to Point i, Clause 2, Article 118 of the Labor Code 2019 and Point i, Clause 2, Article 69 of Decree 145/2020/ND-CP, a person with authority to handle labor discipline: a person with authority to enter into labor contracts on the employer’s side specified in Clause 3, Article 18 of the Labor Code or the person specifically specified in the labor regulations.

Processing time limit

This is the period during which the employer conducts procedures and issues disciplinary decisions to dismiss employees who commit violations. According to Article 123 of the Labor Code 2019, the statute of limitations for labor disciplinary action is 6 months from the date of the violation; In case the violation is directly related to finances, property, disclosure of technological secrets, business secrets of the employer, the statute of limitations for labor disciplinary action is 12 months.

At the end of the prescribed time limit for subjects who are not subject to labor disciplinary action in Clause 4, Article 122 of this Code, if the statute of limitations expires or the statute of limitations is still valid but not enough 60 days, the statute of limitations can be extended for handling. labor discipline but not more than 60 days from the date of expiration of the above period.

Procedures for employee dismissal in Vietnam

The order and procedures for handling dismissal are detailed in Article 70 of Decree 145/2020/ND-CP, specifically including the following steps:

Step 1: Make a record and notify the violation

When an employee is discovered to have violated labor discipline at the time the violation occurred, the employer shall make a record of the violation and notify the employee representative organization at the workplace. establishment of which the employee is a member, the legal representative of the employee is under 15 years old. In case the employer discovers a violation of labor discipline after the violation has occurred, it will collect evidence to prove the employee’s fault.

Step 2: Notice to attend the disciplinary dismissal meeting

Meeting attendees include:

• There must be the participation of the employee representative organization at the facility of which the employee being disciplined is a member;
• Employees must be present and have the right to defend themselves, ask a lawyer or an organization representing employees to defend them; In the case of a person under 15 years old, there must be the participation of a legal representative;

Before holding a meeting to handle disciplinary dismissal, the employer must notify the employer of the meeting to handle disciplinary dismissal at least 05 working days before the date of the disciplinary meeting. Employers notify the content, time, and location of the labor disciplinary meeting, the full name of the person subject to labor disciplinary action, and the violation subject to labor disciplinary action to all participant and ensure those receive notice before the meeting takes place;

Upon receiving notice from the employer, the parties required to attend the meeting must confirm their attendance at the meeting with the employer. In case one of the parties required to attend cannot attend the meeting at the announced time and location, the employee and the employer shall agree to change the meeting time and location; In case the two parties cannot agree, the employer decides the time and place of the meeting;

Step 3: Meeting of dismissal

The employer conducts a labor disciplinary meeting at the announced time and location. In case one of the participants who must attend the meeting does not confirm his or her attendance at the meeting or is absent, the employer will still conduct the meeting to handle labor discipline.

The content of the labor disciplinary meeting must be recorded in minutes, approved before the end of the meeting, and signed by the person attending the meeting. In case someone does not sign the minutes, the person taking the minutes must record your full name and reason for not signing (if any) in the minutes.

Step 4: Issue a disciplinary decision to dismiss the employee.

Within the prescribed statute of limitations for handling labor discipline, the person with authority to handle labor discipline shall issue a decision on handling labor discipline and send it to the parties who must attend.

The person who is disciplined and dismissed is found unsatisfactory, he or she has the right to complain to the employer, to the competent authority according to the provisions of law, or to request resolution of labor disputes according to the legal process. rules.

Pay attention when conducting procedures to fire employees

• Do not apply multiple forms of labor discipline for a violation of labor discipline.
• When an employee simultaneously commits multiple violations of labor discipline, only the highest form of discipline corresponding to the most serious violation will be applied.
• Labor disciplinary action shall not be taken against employees during the following periods:
  • Sickness and convalescence leave; Leave work with the consent of the employer;
  • Being detained;
  • Waiting for the results of the competent authority to investigate, verify, and conclude violations specified in Clauses 1 and 2, Article 125 of the Labor Code;
  • Pregnant female workers; employees taking maternity leave or raising children under 12 months old.
• Prohibited acts when handling disciplinary dismissal:
  • Violating the health, honor, life, reputation, and dignity of workers.
  • Fines and salary cuts instead of disciplinary action like dismissal.
  • Discipline dismissal for employees whose violations are not specified in the internal labor regulations are not agreed upon in the concluded labor contract or are not regulated by labor laws.

Consulting service on employee dismissal procedures of Viet An Law

• Consulting services on legal regulations on grounds, authority, and procedures for dismissal for employees and businesses;
• Services for drafting documents and applications for businesses and fired workers;
• Services for employees participating in the defense at the disciplinary dismissal meeting.
• Dialogue with the employer to resolve issues related to the rights and obligations of employees.
• Representing employees to complain to competent authorities and initiate lawsuits in court when the legitimate rights and interests of employees are violated and authorized by the employee;

If you have any related questions or need consulting support on employee dismissal procedures, please contact Viet An Law for the best support!