Disciplinary dismissal of employees who repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved or fails to go to work without a plausible reason

by | Aug 4, 2022 | Labor Law

Dismissal is the heaviest form of labor discipline, which not only directly affects the  current source of  income  but can also seriously affect the career of employees. Therefore, in the spirit of protecting employees, Vietnam’s labor law strictly regulates the cases in which employers are allowed  to apply the  form of dismissal.

In the last article of the topic “In some circumstances when employers can dismiss an employee for disciplinary reasons”, TNTP analyzes the last two circumstances in which employers can apply the form of disciplinary dismissal to employees, specifically: (i) The employees repeat a violation during the period when they have not cleared the employee’s discipline; (ii) The employee fails to go to work without a plausible reason.

2. An employer may dismiss an employee for disciplinary reasons in the following circumstances:

2.5 The employees repeat a violation during the period when they have not cleared the employee’s discipline and fails to go to work without a plausible reason

a. The employees repeat a violation during the period when they have not cleared the employee’s discipline

Pursuant to Clause 3, Article 125 of the 2019 Labor Code, employers may handle employees in the form of dismissal if the employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved.

Recidivism is a case in which an employee repeats an offense that has been disciplined without being cleared of discipline, which is specified in Article 126 of the Labor Code as follows:

–  An employee who commits a violation that is disciplined by reprimand, deferment of pay rise or demotion will have the previous violation absolved after 03 months, 06 months or 03 years respectively from the day on which the disciplinary measure is imposed if he/she does not commit any violation against internal labor regulations.

– Where an employee who is disciplined by deferment of wage increase has completed half of the duration of the disciplinary measure and has demonstrated improvement, the employer may consider a remission.

Similar to Clause 2, Article 125 of the 2019 Labor Code on employees committing acts that cause serious damage or threaten to cause particularly serious damage to the property and interests of the employer, Clause 3, Article 125 of the 2019 Labor Code also creates a certain openness for employers to handle employees by dismissal. Accordingly, laws and guidance documents that   do not clearly provide for  violations, the extent and nature of the acts are disciplined in the form of dismissal or extension of the salary increase period.

This also shows that Vietnam’s labor law always emphasizes voluntary agreements between employees and employers, employers are actively  specified in the Labor Regulations or agreements in the Labor Contract with Employees to serve as a basis for handling labor unions.  establish and strengthen labor force, increase the operational efficiency of the enterprise.

b. Employees fail to go to work without a plausible reason

According to Point e, Clause 1, Article 36 of the Labor Code 2019, The employee is not present at work without acceptable excuses for at least 05 consecutive working days or more, the employer has the right to unilaterally terminate the labor contract. In this case, when unilaterally terminating the labor contract with the employee, the employer does not have to notify the employee in advance.

According to Section 4 Article 125 of the Labor Code 2019, the form of disciplinary dismissal is applied by the employer in case the employee The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.

Unlike the case of unilateral termination of the labor contract, as long as  the employee voluntarily quits without a plausible reason enough days as prescribed by law (does not require   the “continuous” factor of the act) then the employer  may apply the form of dismissal disciplinary action against the employee.

Also, in Clause 4 Article 125 of the 2019 Labor Code, “plausible reasons” are prescribed as natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.  The Labor law also lists incomplete and detailed cases that are considered a good  reason, employers can   specify in detail in the labor  regulations  dynamic on  cases where plausible reasons are considered, e.g.  who the employee’s relatives include, which are the competent medical examination and treatment establishments; …

The above are the last two circumstances that employers can base on to handle labor discipline in the form of dismissal for employees. I hope TNTP’s article helps readers, see you in the legal analysis articles on the next topics .

Sincerely,

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