Disciplinary measure for dismissal for the employee who commits sexual harassment in the workplace against the internal labor regulations

Continuing the topic of “Disciplinary measures for dismissal for employees”, in this article, we refer to the case of employees who were disciplined for dismissing when there was sexual harassment in the workplace – one of the sensitive issues receiving a lot of attention from society

and is a new point specified in the Labor Code 2019.

2. Cases in which employers are allowed to apply the form of dismissal labor discipline

2.4 Employees engage in sexual harassment in the workplace

According to Clause 9, Article 3 of the Labor Code 2019, sexual harassment in the workplace is an act of a sexual nature by any person towards another person at the workplace that is not desired or accepted by that person. A workplace is any place where an employee works as agreed or assigned by the employer (including a place or space related to the work).

a) Types of sexual harassment

Actions, gestures, physical contact with the body of a sexual or suggestive nature;
Verbal sexual harassment: sexual or suggestive comments or conversations in person, by phone, or through electronic media;
Non-verbal sexual harassment: body language; display, description of sex or sexual activities whether directly or through electronic media.

b) Manifestations of sexual harassment

Offer work conditions, promise promotion, provide benefits, employment benefits in exchange for the sexual submission of the other;
Taking advantage of the other person’s weaknesses, shortcomings, bad work results, etc. to threaten and force this person to obey and meet his/her sexual behaviors and needs;
Oral sex, offensive comments, sexual slander about someone’s appearance, clothes, body;
Intentionally touching the body or taking advantage of the circumstances to be able to touch the body, or sensitive parts of others (for example, taking advantage of a crowded elevator to touch sensitive parts,…);
Assault, sexual abuse;
Pornography provocative sex, filming secretly taking pictures of other people’s sensitive parts (for example, installing a camera in the toilet to monitor,…).

Xem thêm Comment on the Precedent no. 12/2017/AL (Issued by the Council of Judges of the Supreme People's Court on 14 December 2017 and published by Decision No. 299/QD-CA 28 December 2017 by the Chief Justice of the Supreme People's Court)

c) Legal consequences of sexual harassment in the workplace

When the employer has sufficient grounds to prove the existence of sexual harassment at the workplace and the Labor Regulations contain provisions on disciplinary handling of employees, dismissal when the employee commits such behavior, the employer can be disciplined for dismissal based on Clause 2, Article 125 of the Labor Code 2019. Besides, sexual harassment at the workplace can be administratively sanctioned from 15,000,000 VND to 30,000,000 VND according to the provisions of Clause 3, Article 11 of Decree No. 12/2022/ND-CP penalties for administrative violations against regulations on labor, social insurance, and Vietnamese guest workers. In addition, employees who commit this act may be examined for penal liability for related crimes as prescribed in the 2015 Criminal Code.

The above is the fourth case that the employer can base to handle labor discipline in the form of dismissal for the employee. Hope this article is helpful to you. We will continue to analyze cases in which employers are allowed to apply the form of dismissal to employees in the next article.

Best regards,