Dismissal is the heaviest form of disciplinary action, greatly affecting the lives of employees. Therefore, both employees and users should be aware of the following regulations.

Situations where employees may be fired

Article 125 of the Labor Code (Labour Code) 2019 specifically lists 11 cases where the employer can apply the dismissal discipline to the employee. Accordingly, an employee who commits one of the following acts will be fired:

• Theft at work;
• Embezzlement at work;
• Gambling at work;
• Intentionally causing injury at the workplace;
• Using drugs at work;
• Disclosure of business secrets, technology secrets;
• Infringing upon the intellectual property rights of the employer;
• There is an act of causing serious damage or threatening to cause particularly serious damage to the property and interests of the employer;
• Sexual harassment at work is stipulated in the labor regulations;
• Being disciplined for prolonging the time limit for salary increase or dismissing but re-offending while the discipline has not been removed;
• Voluntarily quit for 5 cumulative days within 30 days or 20 cumulative days within 365 days from the first day of voluntarily quitting without a valid reason.

Compared with the previous regulations, the Labor Code of 2019 has added a case where employees are allowed to fire, that is, the employee commits sexual harassment at the workplace.

When considering dismissal, employees may be temporarily suspended from work

Article 128 of the Labor Code 2019 states that, when disciplining an employee, the employer has the right to temporarily suspend that person’s work when the case has complicated circumstances, if the employee is allowed to continue working. would make verification difficult.

However, the temporary suspension of work of an employee is only made after consulting the representative organization of employees at the facility of which the employee being considered for temporary suspension is a member. .

Suspension period: Not more than 15 days, in special cases not more than 90 days.

During the period of temporary suspension of work, the employee is entitled to an advance of 50% of the salary before being suspended from work. At the end of this time, the employer must accept the employee back to work.

If the employee is not disciplined, he/she will be paid in full for the days of suspension, and even if disciplined, the advance payment will not be returned.

Cases of not being disciplined and prohibited behavior when disciplining dismissal

According to Clauses 4 and 5, Article 122 of the Labor Code 2019, the employer may not take disciplinary action against an employee who is in the following cases:

• Sick leave, convalescence; leave with the consent of the employer;
• Being held in custody or temporary detention;
• Waiting for the results of the agency competent to investigate, verify and draw conclusions for the violations specified in Clauses 1 and 2, Article 125 of this Code;
• Pregnant female employees; employees taking maternity leave, raising children under 12 months old.
• The employee violates the labor discipline while suffering from a mental illness or another disease that causes the loss of cognitive ability or the ability to control behavior.
• In particular, Article 127 of this Code also prohibits the following acts when handling labor discipline, including:
• Infringing upon the health, honor, life, reputation and dignity of employees.
• Fines, cut wages instead of handling labor discipline.
• Handling labor discipline for employees who commit violations not specified in the internal labor regulations or not as agreed in the signed labor contracts or not provided for by the labor law.

Illegally fired, what should employees do?

In case the employee thinks that the dismissal of the employer is unreasonable and illegal, he can do it in one of the following ways:

Method 1: Complaint about dismissal decision

• First-time complaint: To the employer requesting to cancel the dismissal decision.
• Second complaint: Go to the Chief Inspector of the Department of Labor – Invalids and Social Affairs, where the employer is headquartered if the first complaint is not resolved or does not agree with the settlement.

Base: Decree 24/2018/ND-CP.

Method 2: Mediation through Labor Mediator, Labor Arbitration Council

With dismissal discipline disputes, the employee may or may not use this method.

Base: Article 188 of the Labor Code 2019.

Method 3: File a lawsuit in Court

 The employee has the right to go directly to the district-level People’s Court where the enterprise’s head office is located for disputes over labor discipline in the form of dismissal.

Base: Article 188 of the Labor Code 2019.

Method 4: Report to the police agency

To make criminal denunciations to the investigating agency if the employer’s illegal dismissal shows signs of constituting the crime of forcing civil servants to quit or illegally dismissing employees as prescribed. defined in Article 162 of the Penal Code 2015, revised in 2017.

Particularly, if the employer finds out that his dismissal is wrong, it should be rectified immediately. If it cannot be remedied, the employer should cancel the dismissal decision and apologize and compensate the employee.

Rights of laid-off workers

Laying off does not mean that workers are “end of life” when there is no job. However, employees still enjoy the following benefits:

• To be paid annual leave if not taking leave or not taking all of them: Pursuant to Clause 3, Article 113 of the Labor Code 2019, an employee who loses his/her job but has not taken annual leave or has not taken all annual leave shall be entitled Employers pay wages for unpaid days.
• To be fully paid all amounts related to their interests according to Clause 1, Article 48 of the Labor Code 2019.
• To close the social insurance book and return it together with the originals of other papers that the employer has kept (if any).
• Receive unemployment benefits and benefits related to unemployment insurance if eligible.

If you need more detailed advice as well as how to access this service, please contact Lawyer Nhat Nam via hotline: 0912.35.65.75, 0912.35.53.53 or call the legal consulting centre at 1900.6575 or send a service request via email: lienheluathongbang@gmail.com.

We wish you and your family good health, peace and success!

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