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1. Notes before handling breaches of labor discipline
In accordance with Article 122, Labor Code 2019, the handling of a breach of labor discipline is prescribed as follows:
- The handling of a breach of labor discipline is prescribed as follows
- It is prohibited to impose more than one form of labor discipline on a single act of breaching labor discipline.
- For the employee who simultaneously commits more than one act of breaching labor discipline, the highest form of discipline corresponding to the most serious act of breach shall be applied.
- No labor discipline will be imposed on the employee who is:
- Taking sickness or convalescence leave, or leave with the employer’s consent;
- Kept in custody or temporary detention;
- Awaiting results of investigation and verification and conclusion of a competent agency for his/her act of breach specified in Clause 1 or 2, Article 125 of this Code;
- Pregnant, or on maternity leave or raising a child under 12 months old.
- No labor discipline will be imposed on the employee who breaches labor discipline while suffering a mental disease or another disease that deprives him/her of the ability to perceive or control his/her acts.
2. Order and procedures for handling breaches of labor discipline
Step 1: Confirm the breaches of labor discipline
In accordance with Claus 1, Article 70, Decree No. 145/2020/ND-CP, the confirmation of breaches of labor discipline is as follows:
- If detecting an employee committing a breach of labor discipline at the time the breach is committed: the employer shall make a written record of the breach and notify thereof to the grassroots-level employees’ representative organization of which such employee is a member or the at-law representative of the employee, in case he/she is under full 15 years.
- In case the employer detects a breach of labor discipline after it is committed: Collect evidence to prove the employee’s fault.
Step 2: Hold a meeting about the handling of the breach of labor discipline
* The implementation time: Within the statute of limitations for handling a breach of labor discipline
* Preparation of the meeting:
- Notify the contents, time and place of the meeting, full name of the employee subject to the handling of the breach:
+ The grassroots-level employees’ representative organization of which such employee is a member
+ The employee having breach of labor discipline
+ The at-law representative of the employee if he/she is under full 15 years.
- Term of notification: At least 5 working days before the meeting is held.
- The compulsory attendances at the meeting shall confirm their attendance with the employer. Or the employer and employee shall reach agreement on the change of the meeting’s place and time;
* Hold the meeting:
- Check the attendants of the meeting: The meeting for handling a breach of labor discipline is hold when having all the compulsory attendances or compulsory attendances at the meeting fails to confirm his/her attendance or is absent.
- In the meeting:
+ The employer can prove the fault of the employee;
+ The grassroots-level employees’ representative organization of which the concerned employee is a member must participate in handling the breach
+ The employee must be present and may defend himself/herself or ask a lawyer or the employee’s representative organization to defend him/her; if the employee is under full 15 years old, he/she shall be accompanied by his/her at-law representative;
+ The handling of the breach shall be recorded in a minute, approved before the end of the meeting
+ The minute must bear the signatures of the attendances. In case an attendance refuses to sign the minutes, the minutes' maker shall clearly record the full name of such attendance and reason(s), if any, for his/her refusal.
Step 3: Issuing the decision of handling breaches of labor discipline
Within the statute of limitations for handling a breach of labor discipline, persons competent to handle breaches of labor discipline as prescribed in Point i, Clause 2, Article 69, Decree No. 145/2020/ND-CP as follows: A person entering into a labor contract on the employer’s side may be
+ A person competent to sign the labor contracts;
+ Appointed person to have authority to handle breaches of labor discipline
Step 4: Notify publicly the decision on handling breaches of labor discipline
+ The decisions on handling breaches of labor discipline are publicly announced.
Within the statute of limitations for handling a breach of labor discipline a person competent to handle breaches of labor discipline shall issue a decision on handling of breaches of labor discipline and send it to the compulsory attendances: the grassroots-level employees’ representative organization and if the employee is under full 15 years old, he/she shall be accompanied by his/her at-law representative.
Therefore, enterprises must make the right process and procedure for handling breaches of labor discipline for legal acts and avoiding appeals.
