Currently, according to the Labor Code 2019 (“LC 2019”), dismissal is the heaviest measure of disciplinary action, directly affecting the existence of the labor relationship. Therefore, this measure also arises many labor contract disputes. The Labor Code 2019 specifically sets forth the cases in which the Employer is entitled to apply the dismissal to the Employee. In this week’s article, TNTP will analyze one of these cases in detail, as well as give some suggestions for enterprises to apply the dismissal discipline in accordance with law.
1. What is the dismissal?
Dismissal discipline is the highest measure of labor discipline that the law allows employers to apply to employees who commit disciplinary violations. The legal consequences of dismissal are the termination of the labor contract of the employee and the termination of the labor relationship accordingly.
2. Cases in which employers are allowed to apply the dismissal labor disciplinary measure
2.1. Employees commit acts of theft, embezzlement, gambling, deliberate infliction of injuries, using drugs at work
When there is evidence that the employee performs one of the above acts at the workplace (workplace is any place where the employee works as agreed or assigned by the employer), the employer only needs to based on the employee’s behavior enough to dismiss the employee, it is not necessary to base on the damage consequences caused by such behavior because these are acts that seriously affect the order of the enterprise.
Considering theft behavior:
Theft is understood as the act of sneaking, secretly evading the detection of the property manager to appropriate property. The stealthy, concealed element of this behavior is only required of the property owner or manager. The person who steals the property is also stealthy, hiding it from others, however, this is not required for the theft behavior.
Due to the Labor Code 2019 and its guiding documents have not yet described the property theft in detail, the employer should describe this behavior in detail in the Labor Regulations. Specifically, the employer can set forth that i) As long as the employee commits an act of stealing property at the workplace, there is no need to cause damage to be subject to the dismissal; ii) The subject of theft can be the property of the employer, the property of another employee, the property of the client or anyone else, as long as the act is committed at the workplace, then Employers can apply dismissal to employees.
Considering embezzlement behavior:
According to Article 353 of the Penal Code 2015, amended and supplemented in 2017 (“PC 2015”), embezzlement is understood as an act performed by a person with a position of power in the action of abusing his position, the right to appropriate property that they are responsible for managing. Similarly, embezzlement in the Labor Code 2019 is understood as an act performed by a person with a position and authority in the action of abusing his position and power to appropriate the employer’s property for which the employee is responsible for management duties.
Persons responsible for assets may be persons assigned to directly manage assets such as cashiers, storekeepers, accountants, persons assigned to transport assets, etc, moreover, those who are not directly assigned to manage assets but are responsible for deciding on revenue and expenditure, import and export, purchase, sale and exchange of assets such as company directors, deputy heads, etc. For embezzlement cases with accomplices, accomplices may be people without positions and powers. Employers should specify this issue in the labor regulations.
Currently, the law does not specify the value of property appropriated due to the act of “theft”, or “embezzlement” which the employer can base on to apply dismissal. Therefore, the employer can stipulate this issue in the labor regulation in the direction that, as long as the employee commits the act of “theft”, “embezzlement” is enough grounds to apply the dismissal, no need to consider property value.
Considering gambling behavior:
Gambling is understood as the act of participating in an illegally organized game in which the win (or loss) is paid in cash or things without the permission of the competent state agency or the state authority. authorized country but does not comply with the provisions of the license granted.
The traditional measures of gambling are often seen as playing cards, playing the lottery, betting on football, betting on horse racing, car racing, etc. In addition, nowadays, online gambling behavior appears as much as online football betting, online gambling in which the winner can exchange rewards from virtual money to real money and vice versa,…
Currently, the law does not specify the value each time gambling, the employee will be disciplined and fired. Therefore, the employer can set forth this issue in the labor regulations in the direction that, as long as the employee has a “gambling” behavior, it is enough grounds to apply the dismissal labor disciplinary measure, regardless of the value each time gambling, regardless of traditional or online gambling.
Considering deliberate infliction of injuries behavior and using drugs behavior:
Deliberate infliction of injuries is an act of intentionally infringing upon the body and health of others within the workplace or while the employee works at the labor organization.
Using drugs in the workplace is the act of using narcotic substances by actions such as injecting, smoking, injecting, etc. within the workplace. Prohibited drugs are Opium, Morphine, Heroine, Cannabis, and cannabis products,… which are specified in Decree No. 73/2018/ND-CP of the Government that lists narcotic substances and precursors, as amended and supplemented by Decree No. 60/2020/ND-CP.
There are cases in which employees do not use drugs at work but have limited cognitive ability and behavior control during work due to drug use. Considering the consequences for the employer when the employee uses drugs at work and the behavior of the employee who does not use drugs at work but has limited cognitive ability and behavior control, it is the same. So can the employer handle the dismissal of employees who use drugs before working time but have limited awareness and behavior control during working time and in the workplace? We think that this is something that can be done if the employer foresees and stipulates it in the Labor Regulations, as a basis for handling dismissal, if any violations occur.
The above is the first case that the employer can base to handle dismissal for the employer. In addition to legal consulting activities, we will continue to analyze the next dismissal cases in the next week’s articles. We kindly invite your attention to the following articles.
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