Update day: November 2 , 2023

What should enterprises keep in mind when dismissing employees?

Legal regulations on handling labor discipline are not only recorded in Labor Code 2019, but the previous labor law and its documents guiding the implementation also recorded in detail the order of steps to handle labor discipline, especially dismissal. However, in fact, the annual number of disputes arising from handling labor discipline is not small. Although enterprises can prove that they have grounds to dismiss employees, they still have to fulfill compensation obligations as well as get employees back to work due to incorrect procedures.

Through the article below, we will mention the important points that enterprises need to keep in mind when disciplining employees.

Table of contents:

1. Collecting sufficient evidence to prove the Employee’s violation

Dismissal is the most severe form of disciplinary action against employees. Therefore, the law regulates quite strictly the cases in which enterprises are allowed to apply for dismissal. In addition to properly understanding and applying the cases permitted by law, enterprises must prepare documents and evidence to prove the employee’s violations.

In case an employee is dismissed due to arbitrarily quitting a job for 05 accumulated days within 30 days or 20 accumulated days within 365 days from the first day of arbitrarily quitting the job without any good reason, the competent authority will collect evidence from sources such as statements of witnesses, timesheet data; data of magnetic swipe card when entering and exiting the company; data extracted from cameras in the company, internal labor regulations, etc. to review and evaluate employees who arbitrarily quit their jobs or employees who come to work but the employer does not let them in; reason for leaving work (if the employee leaves work due to a good reason such as natural disaster, fire, illness of himself or a relative with confirmation from a competent medical examination and treatment facility and other cases prescribed in the internal labor regulations, the employer’s dismissal is unfounded).
In case an employee commits acts of theft, embezzlement, gambling, intentional injury, drug use, etc., in addition to proving the violation, the enterprise will have to consider documents and evidence proving the violation and the location where the violation occurred must be within the scope of “at work”. In case the violation does not occur at the workplace, the employer is not allowed to discipline the employee in the form of dismissal.

2. Follow the correct procedures to handle labor discipline in accordance with the law

Enterprises complying with the order of steps, document content, participants, etc. (collectively referred to as the labor disciplinary process) is considered a necessary and sufficient condition to determine that the enterprise’s disciplinary decision is in accordance with regulations.
It is understood that, if the enterprise determines that the employee has committed a violation and that behavior corresponds to dismissal, the next step that the enterprise needs to take is the disciplinary process in accordance with the law. The legal disciplinary process is understood as the enterprise’s compliance with the requirements of the statute of limitations for handling labor discipline, employees that do not fall into cases where handling labor discipline is not allowed, the process of organizing a meeting to handle labor discipline, sending notice of meeting invitation, participants, opinions of parties participating in the meeting, etc.
During participation in dispute resolution sessions related to the dismissal of employees, we realized that many enterprises were heavily affected. Although the dismissal decision was well-founded, the enterprises violated the procedures for dismissal, and they were assumed to violate the legitimate rights and interests of employees.

3. Enterprise’s obligations when handling illegal dismissal

In case an enterprise does not handle dismissal in accordance with regulations, including the nature of behavior or procedures, the legal consequence is that the enterprise will be forced to get the employee back and fulfil obligations of compensation, salary, etc. in accordance with the provisions of labor law.
Regarding this issue, the Supreme People’s Procuracy guides as follows:
When there is a basis to confirm that the employer has issued a decision to handle labor discipline in the form of illegal dismissal, the prosecuting agency must consider the employer’s obligation in accordance with Article 41 of the Labor Code 2019; Article 73 of Decree No. 145/2020 through the research of documents and evidence on specific compensation claims of employees; the compensation that the employee has received and has not received.
The prosecuting agency will clarify the time that the employee is not allowed to work; the term of employment in the labor contract; Actual start and end time of the labor contract; Will the employee and employer continue to sign a new labor contract after the current contract expires?; Time of paying for health insurance and unemployment insurance; net salary of the employee, the subjective will of the employee about the request to return to work for the employer, etc.
In case the fixed-term labor contract between the employee and the employer has ended before the judgement of the court of first instance, but both parties have not agreed to sign a new labor contract, the employer does not have an obligation to get the employee back to work. Or in case the employee has a new job and paid social insurance before filing a lawsuit or before the judgement of the Court of First Instance, the “days on which the employee is not allowed to work” specified in Clause 1, Article 41 of the Labor Code 2019 is calculated until the date the employee gets a new job.
Labor law sets out many regulations to monitor enterprises in the process of dismissing employees. Therefore, to ensure the interests of enterprises, each enterprise needs to develop disciplinary procedures to avoid errors in the labor management process.

Time of writing: 24/07/2023

The article contains general information which is of reference value, in case you want to receive legal opinions on issues you need clarification on, please get in touch with our Lawyer at info@cdlaf.vn

Why choose CDLAF’s service?

We provide effective and comprehensive legal solutions that help you save money and maintain compliance in your business;
We continue to monitor your legal matters even after the service is completed and update you when there are any changes in the Vietnamese legal system;
Our system of forms and processes related to labor and personnel is continuously built and updated and will be provided as soon as the customer requests it;
As a Vietnamese law firm, we have a thorough understanding of Vietnam’s legal regulations, and grasp the psychology of employees, employers, and working methods at competent authorities;
CDLAF’s team of lawyers has many years of experience in the field of labor and enterprises, as well as human resources and financial advisory.
Strict information security procedures throughout the service performance and even after the service is completed.

You can refer for more information: