Disciplinary measure for dismissal for the employee who discloses technological or business secrets or infringes the intellectual property rights of the employer

by | Jul 14, 2022 | Labor Law

Successively Part 1 on the case of employees being disciplined for Employees committing acts of theft, embezzlement, gambling, deliberate infliction of injuries, and using drugs at work, in this week’s article, we will continue to share in cases Employees are disciplined for dismissal when disclosing business secrets, technology secrets, infringing on the intellectual property rights of employers.

2. Cases in which an employer is allowed to apply the dismissal labor disciplinary measure

  • The Employee discloses technological or business secrets, infringing on the intellectual property rights of employers

As well as the violations in section 2.1, 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 base on the employee’s behavior to dismiss the employee,  there is no need to base on the consequences of the damage caused by such behavior because these are acts that seriously affect the order in the enterprise.

Considering disclosing business secrets:

According to Clause 23 Article 4 of the Intellectual Property Law 2005, ” Business e secret means information obtained from activities of financial or intellectual investment, which has not yet been disclosed and which is able to be used in business.” Business secrets are not registered but in order to be protected, business secrets must satisfy the following conditions:

  • It is neither common knowledge nor easily obtainable;
  • When used in business activities, the business secret will create for its holder advantages over those who do not hold or use it;
  • The owner of the trade secret maintains its secrecy by necessary means so that the secret will not be disclosed nor be easily accessible.

In order to dismiss an employee for disciplinary reasons, employers need to stipulate what is the business secret in the labor regulations, from which the employer has grounds to determine whether the employee has disclosed this information or not.

Considering disclosing technological secrets:

 Firstly, we need to understand what do “technological secrets” mean? Currently, according to the Labor Code 2019 and related laws do not stipulate what “Technology Secrets” means. However, we can refer to the concept of “Technology” as stipulated in the Law on Technology Transfer 2017, according to which we can understand that technological secrets are information about solutions, processes, know-how with or without accompanying tools instruments, and facilities to convert resources into products.

Each enterprise will have different technological secrets, and not all solutions, processes, and know-how are considered technological secrets. Therefore, employers also need to clearly specify which solutions, processes, and know-how are technological secrets in order to have grounds to determine whether the employee has violated or not.

Considering infringing on the intellectual property rights :

 According to Article 4 of the Law on Intellectual Property 2005, “Intellectual property rights means the rights of organizations and individuals to intellectual assets comprising copyright and copyright-related rights, industrial property rights and rights to plant varieties “.

 Intellectual property rights are protected when employers have one of the papers and documents:

  • A patent, Certificate, or Protection title Includes an invention patent, utility solution patent, industrial design patent, certificate of registered design of semi-conducting closed circuits, certificate of the registered mark, and certificate of the registered geographical indication, Protection title of Protected Plant Varieties; Protection title Copyright and Related Rights
  • An Extract of the National Register of Industrial Property; on Copyright and Related Rights; of Protected Plant Varieties
  • For has an internationally registered mark, evidence proving that the rights holder is the Certificate of International Registration Trademark protected in Vietnam issued by the State administrative body for the industrial property;
  • For other intellectual property objects, evidence proving that the rights holder is documents, samples, and information on the basis of arising rights, establishing corresponding rights as prescribed in Clause 1, Clause 2, Point b, Point c Clause 3 Article 6 of the Law on Intellectual Property 2005.

Acts of infringement of intellectual property rights are specified and detailed for each type of intellectual property rights in Articles 28, 35, 126, 126, 127, 129, and 188 of the Law on Intellectual Property 2005.

For infringing on the intellectual property rights, the employer has the right to dismiss an employee for disciplinary reasons, and besides, depending on the nature and seriousness of the violation, the employee who commits the violation may also be held administrative penalties or criminal prosecution and shall pay compensation for any damage caused as prescribed by law

Above is the second case that employers can base on to apply dismissal labor disciplinary. 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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TNTP and Associates International Law Firm

Lawyer Nguyen Thanh Ha

Phone: 0931 798 818

Email: ha.nguyen@tntplaw.com

TNTP International Law Firm and Associates

Lawyer Nguyen Thanh Ha

Phone number: 0931 798 818

Email: ha.nguyen@tntplaw.com