|The proceedings of a disciplinary case regarding a violation of the labour discipline must be preserved in writing. — File Photo
On January 12, 2015, the government promulgated Decree No 05/2015/ND-CP, detailing the rules of labour discipline, which came into effect from March 1, 2015.
1. Principles of handling a violation of labour discipline.
a. The employer must be able to prove the fault of the employee.
b.The attendance of the organisation representing the collective of grassroots-level employees is required in the handling of a violation of labour discipline.
c. The employee must be present and may defend him/herself or ask for a defence lawyer or any other person. If the employee is under 18, his/her parents or a lawful representative must participate in the handling of the violation of the labour discipline.
d. The proceedings of a disciplinary case regarding a violation of the labour discipline must be preserved in writing.
e. It is prohibited to impose more than one form of labour discipline for a single violation.
f. For an employee who simultaneously commits more than one violation of labour discipline, only the highest form of discipline corresponding to the most serious violation is allowed to be applied.
g. Labour discipline may not be imposed for violations committed by an employee who is currently:
" On sickness or convalescence leave or on leave with the employer's consent;
"In custody or temporary detention;
"Waiting for the results of the verification and conclusion of a competent agency for acts of violation such as theft, embezzlement, gambling and intentional infliction of injury, as well as use of drugs inside the workplace etc;
"A female employee who is pregnant or on maternity leave, or the biological father, mother or legal adoptive father or mother rearing a child under 12 months of age. In the event where the statute of limitations for handling a violation of labour discipline has expired before the period of nursing a child under 12 months of age expires, such statute of limitations may be extended but for no more than 60 days from the expiry date of the period of raising a child under 12 months old.
h. No labour discipline shall be imposed on an employee who violates the internal working regulations while suffering a mental disorder or another disease that deprives him/her of the capacity to perceive or control his/her acts.
i. Prohibited acts when handling violations of labour 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 that is not defined in the internal working regulations.
2. Statute of limitations for handling labour discipline violation
The statute of limitations for handling a violation of labour discipline is six months, commencing from the date the violation is committed. In addition, the statute of limitations for handling a violation of labour discipline directly related to finance and assets or disclosure of technological or business secrets is 12 months.
3. Procedure of handling violations of labour discipline
Step 1. Announcement
Five days prior to the meeting for handling a violation of labour discipline, the employer shall file a written notice of such meeting with the grassroots-level trade union or the higher-level trade union (where the grassroots-level trade union is yet to be established); the employee; and the father, mother or lawful representative of an employee who is under 18 years of age.
Step 2. Meeting for handling a violation of labour discipline
The meeting for handling a violation of labour discipline shall be held in the presence of all participants informed in accordance with the above mentioned provision. In case one of the participants is not present in the meeting, even though the employer has informed him/her in writing three times, the employer shall nonetheless conduct the meeting (except in cases where a labour discipline may not be imposed, such as the employee being on sickness leave, in custody or temporary detention, etc). The happenings at the meeting for handling a violation of labour discipline must be recorded in writing (the "meeting minutes") and approved by the participants before the meeting ends. Signatures of the participants and the person who made the minutes must be sufficiently included in such minutes. If one of the participants refuses to sign the minutes, a reason must be clearly stated.
Step 3. Decision to handle a violation of labour discipline
The enterprise's legal representative is the one who has the competence to decide on the form of labour discipline to be imposed on the employee. The person who is authorised to enter into a labour contract only has the competence to handle a labour discipline violation in the form of a reprimand. The decision on how the labour discipline violation should be handled must be issued within the statute of the limitations, or the extended period of the limitations of handling a labour discipline violation, and must be sent to those participating in the meeting for handling a labour discipline violation.
It is important to note that the employer is permitted to temporarily suspend an employee from work, if the employer considers the case of violation to be a complex one, and that any continued work performance by the employee can cause difficulties for verification. Suspension from work may only be applied after the employer consults the representative organisation of the grassroots-level employees' collective. Particularly, the period of work suspension must not exceed 15 days, or 90 days in special cases. Upon the expiry of such period, the employer must allow the employee to resume work. In addition, during the period of suspension, the employee is entitled to get an advance 50 per cent of his/her wage prior to the suspension. In case the employee is disciplined, he/she is not required to reimburse the wage advanced to him/her. In case the employee is not disciplined, the employer shall pay the employee the full wage for the period of temporary suspension from work.
PLF – LAW FIRM