1. Definition of “Labor discipline”
- In 2019 Labor Code, labor discipline comprises provisions on the compliance in respect of time, technology, production and business management that are imposed by the employer and prescribed by law.
- In 2012 Labor Code, labor discipline comprises provisions on the compliance in respect of time, technology, production and business management which are set out in labor rules and regulations.
2. Employers’ obligation to issue labor discipline
Under regulations laid down in Article 118 of the 2019 Labor Code, employers must issue labor discipline. If they hire at least 10 employees, labor discipline must exist in written form.
(Current regulations prescribe that those employers hiring at least 10 employees must put written labor rules to use").
3. Main contents of labor rules
Labor rules must not be contrary to labor legislation and regulations of relevant laws; and must comprise the following main matters:
- Work and rest time;
- Order in the workplace;
- Labor safety and hygiene;
- Prevention and control of sexual harassment at workplace; processes and procedures for addressing sexual harassment at workplace (this is a new regulation);
- Protection of property, trade, technology secrets and intellectual property for employers;
- Cases in which employees may be temporarily transferred to the work other than the one mentioned in the employment contract (this is a new regulation);
- Acts of violation against labor discipline committed by employees and disciplinary actions;
- Material responsibility;
- Persons having competence in handling violations against labor discipline (this is a new regulation).
4. Legalization of "using below 10 employees is not subject to the requirement for registration of labor rules”
Clause 1 of Article 119 in the 2019 Labor Code prescribes that employers using at least 10 employees must register their labor rules with labor authorities affiliated to provincial People’s Committees at the places where employers make their business registration.
This means that, from January 1, 2021, employers hiring less than 10 employees may be free from the requirement for registration of their labor rules.
(This regulation is currently set out in clause 4 of Article 10 in the Circular No. 47/2015/TT-BLDTBXH).
5. The participation of a legal representative required in case of disciplining an employee under 15 years of age
Under clause 1 of Article 122 in the 2012 Labor Code, when disciplining any employee, that employee must be present and has the right of self-defense or the right to counsel by a lawyer or an employee representative;
If the disciplined employee is under 15 years of age, the participation of his/her legal representative is required.
(The existing regulation prescribes that, if the disciplined employee is under 18 years of age, the participation of his/her parent or legal representative is required).
6. Time limit for imposition of disciplinary actions
The time limit for imposition of disciplinary action is 06 months from the date on which a violation occurs; In case the violation is directly related to the employer's finance, property, disclosure of technology or trade secrets of employers, the time limit for imposition of disciplinary action is 12 months;
Upon expiry of the period during which disciplinary actions cannot be imposed under Clause 4 Article 122 of the 2019 Labor Code, if such time limits expire, or the remaining time limit is not enough 60 days, the time limit for imposition of disciplinary action may be extended to no more than 60 days from that expiry date.
Employers must issue decisions on disciplinary action within the above-stated time limits.
In conclusion, compared to the existing regulation, 2019 Labor Code makes no distinction in terms of the determination of time limits for imposition of labor disciplinary actions between cases in which disciplinary actions against employees falling within the prescribed time are not imposed.
7. More cases in which employers may fire their employees
2019 Labor Code regulates an additional case in which employers may apply disciplinary action in a form of dismissal to employees, apart from other cases prescribed in existing regulations.
This is when an employee commits an act of sexual harassment at workplace as provided in labor rules.
Sexual harassment at workplace refers to an act of sexual characteristics that any person inflicts upon any other person at workplace against the latter's will or without the latter’s consent. Workplace refers to any place that employees work in reality according to agreements or assignments of employers.
8. Acts prohibited in case of imposition of disciplinary actions
** 2019 Labor Code: Acts prohibited in case of imposition of disciplinary actions, including:
- Harming the employee's health, life, honor or dignity.
- Imposing penalties in the form of fines or salary cuts instead of labor-related disciplinary actions.
- Imposing a disciplinary measure against an employee for a violation which is not stipulated in the internal labor regulations or employment contract or labor laws.
** 2012 Labor Code: Acts prohibited in case of imposition of disciplinary actions, including:
- Inflicting bodily or dignitary harms on employees.
- Imposing penalties in the form of monetary fines or salary cuts instead of labor-related disciplinary actions.
- Disciplining employees who commit violations though such disciplinary action is not prescribed in labor rules.
In addition, material responsibility that employees must bear in case of any loss or damage to employer's assets is stipulated in the 2019 Labor Code as follows:
- An employee who causes damage to equipment or otherwise damages the employer’s assets will have to pay compensation in accordance with labor laws or the employer’s internal labor regulations (existing regulations prescribe that compensation can be made by operation of law);
- An employee who loses the employer’s equipment or assets, or consumes the materials beyond the set limits will pay a compensation for damage in full or in part at the market price or as stipulated in the internal labor regulations (existing regulations prescribe that compensation can be made at the market price).
In case where employers and employees enter into a liability contract, compensation must be made according to contractual terms and conditions; In case such loss or damage is caused by a natural disaster, fire, war, major epidemic, calamity, or another force majeure event which is unforeseeable and insurmountable, and all necessary measures and possibilities for avoidance have been taken, the compensation shall not be required.
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