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Illegal dismissal of employees a criminal liability

Update: June, 29/2016 - 10:36
Iluustrative Image PLF Law Firm

Since July 01, 2016, the legal representatives of enterprises that illegally dismiss their employees can be imprisoned for three months to three years under the provisions of the 2015 Criminal Code.

Not all cases of illegal dismissal of employees are handled in a criminal court. Only the following cases are treated as criminal cases:

Dismissal that leads to a predicament for the employee and their family or strikes

If the legal representative of an enterprise dismisses an employee over private interests or for personal reasons, they will be fined VNĐ10 million to VNĐ100 million, subject to a suspended sentence of up to one year, or be imprisoned for three months to one year under Clause 1, Article 162, of the 2015 Criminal Code.

Dismissal of two or more people, pregnant women, those raising children under 12 months of age or those who later commit suicide as a result of the dismissal

Any cases of illegal dismissal from employment that fit these parameters will attract fines of VNĐ100 million to VNĐ200 million, subject to a suspended sentence of up to one year, or imprisonment for three months to one year under Clause 2, Article 162, of the 2015 Criminal Code.

Several shortcomings

Provisions on criminal liability for the illegal dismissal of employees took effect on July 1, 2000. However, at the time, they did not specify any details, which resulted in a cumbersome application process. Although new provisions now offer more details than previous ones did, they still do not include some necessary specifications. For instance, it is unclear which cases should be considered as having fallen into a predicament. If the consequence of suicide and strikes is taken into consideration for criminal prosecution, a causal relationship between the dismissal and this consequence should be established. Further, the law does not specify whether disciplinary measures for dismissing two employees must be applied concurrently or consecutively.

Preventing violations

To avoid legal risks in such circumstances, enterprises must strictly comply with regulations on order and procedure when dismissing an employee under the provisions of the labor law.

When the employees violate the terms of their contracts, enterprises should not move for immediate dismissal but should consider and examine the situation thoroughly to determine whether there are grounds for dismissal based on the employee’s actions and whether the disciplinary measures fall within the statute of limitations.

During the process of dismissal, it is necessary to strictly comply with the labour law’s principles and procedures, such as having the representative of the local labor collective organisation participate in the proceedings, proving the fault of the employee and creating a record in writing.

In fact, our law firm has acknowledged that the rate of illegal dismissal of employees from enterprises is quite high. The main reason may be that the human resource department is unaware of the provisions on labour or has not closely complied with discipline procedures, or there may be a lack of inspection and supervision when disciplining employees.

Also, it should be noted that the legal representative of the enterprise is the liable party in criminal cases of illegal dismissal. Therefore, to avoid unfortunate circumstances, enterprises need to be supported on the basis of legal knowledge, consultations, supervision and rigorous inspection of the employee dismissal process. — PLF Law Firm

 

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