Dismissal is the heaviest form of discipline among the four forms of discipline specified in Article 124 of the Labor Code 2019. It is quite common for employers to arbitrarily dismiss employees and terminate labour contracts in the current epidemic situation. However, not all cases of dismissal of employees by the employer are determined to be legal. So, when is an employer allowed to apply the dismissal discipline? What is the order and procedure for the dismissal of an employee? In today’s article, Apra Law will help readers answer the above issues.
Firstly, about the cases where the employer is allowed to fire the employee
According to Article 125 of the Labor Code 2019, the disciplinary form of dismissal is applied by the employer in the following cases:
- The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
- The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
- The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of the Labor Code 2019;
- The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Second, on the principle and statute of limitations for handling labour discipline
The handling of labour discipline must comply with the principles specified in Article 122 of the Labor Code 2019. Accordingly, the handling of labour discipline is prescribed as follows:
- The employer is able to prove the employee’s fault;
- The process is participated in by the representative organization of employees to which the employee is a member;
- The employee is physically present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present;
- The disciplinary process is recorded in writing.
- It is prohibited to impose more than one disciplinary measure for one violation of internal labor regulations.
- Where an employee commits multiple violations of internal labor regulations, he/she shall be subjected to the heaviest disciplinary measure for the most serious violation.
- No disciplinary measure shall be taken against an employee during the period when:
– The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;
– The employee is being held under temporary custody or detention;
– The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of the Labor Code 2019;
– The employee is pregnant, on maternal leave or raising a child under 12 months of age.
- No disciplinary measure shall be taken against an employee who commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control.
The time limit for taking disciplinary measures against a violation is 06 months from the date of the occurrence of the violation. The time limit for dealing with violations directly relating to finance, assets and disclosure of technological or business secrets shall be 12 months.
For cases such as employees being held in custody or temporary detention or pregnant female employees mentioned in Section 7 above, upon the expiration of the prescribed time limit, if the statute of limitations expires or the statute of limitations is still under 60 days, The statute of limitations for handling labour discipline may be extended, but not exceeding 60 days from the date of expiration of the above-mentioned time limit.
The employer must issue a decision on disciplinary action within the time limit mentioned above.
Third, about the order and procedures for disciplinary dismissal of employees
When detecting that an employee has violated labour discipline at the time of the violation, the employer shall make a record of the violation and notify the employee’s representative organization at the workplace establishments of which the employee is a member, the legal representative of the employee is under 15 years old. In case the employer detects a violation of labour discipline after the violation has occurred, it shall collect evidence to prove the fault of the employee.
– At least 05 working days before the date of meeting to handle labour discipline, the employer shall notify the content, time and location of the meeting to handle labour discipline, full name of the person subject to labour discipline, violations subject to labour discipline to the parties who must attend the meeting, ensure these parties receive notice before the meeting;
– Upon receipt of the employer’s notification, the mandatory participants shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on a change of time and/or location of the hearing. In case such n agreement cannot be reached, the employer shall make the final decision;
The employer shall conduct the compensation hearing at the time and location mentioned above. In case any of the mandatory participants does not confirm his/her participation or is not present, the employer shall still conduct the hearing.
ratified before the end of the hearing. The minutes shall bear the signatures of the participants as prescribed. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes
Above is a consulting article on “Disciplinary action of employees in the form of dismissal” of Apra Law Company Limited. If you still have questions about the above issues and need to be answered, please contact the hotline for advice and support.
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