IMPORTANT ISSUES UPON DISMISSAL OF EMPLOYEES FOR JOB ABANDONMENT

​Dismissal is the most severe form of labor discipline, resulting in the termination of the employment relationship between enterprise as the employer and the employee. This decision significantly impacts the employee’s rights, leading to the loss of income and potential difficulties in future employment due to damaged reputation from previous employment. Conversely, enterprises may be held legally responsible if the dismissal is not executed correctly and fully. Therefore, when implementing dismissal of employees for job abandonment, employers should pay attention to the some important legal issues.

Enterprises are only allowed to apply the dismissal for employees in cases prescribed by law

To ensure the legal rights and interests of employees with “a disadvantaged position” in the relations of employment, disciplinary actions in general and the application of dismissal in particular must strictly comply with the provisions of the law.

As stipulated in Article 125 of the Labor Code 2019, the disciplinary measure of dismissal may only be applied in cases where an employee commits the following violations: (i) engaging in theft, embezzlement, gambling, intentional infliction of injury, or drug use at the workplace; (ii) 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; (iii) repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved; or (iv) job abandonment.

It is crucial to note that not every instance where employees to go to work allows the employer to dismiss them. The act of “job abandonment” as mentioned in the above regulation must fully satisfy the following conditions:

– The period of absence is accumulated to 05 days within a 30-day period, or 20 days within a 365-day period starting from the first day of job abandonment;

– Job abandonment without a legitimate reason. Legitimate reasons here are defined to include natural disasters, fires, personal or family illness confirmed by an authorized medical facility, and other cases specified in the internal labor regulations.

The dismissal of employees for job abandonment must be specifically stipulated in the internal labor regulations and policies of enterprise

In addition to the general standards set by law, the conditions and procedures for dismissal must be detailed by the enterprise in its internal labor regulations and in its internal labor management policies (if applicable), tailored to the specific nature of its operations and management.

The enterprise’s internal labor regulations must clearly define the violations that can lead to dismissal, including cases of job abandonment. It is important to note that the internal labor regulations must be consulted with the representative organization of employees at the workplace (if such an organization exists), be legally registered with the competent authority (where required by law) and be widely disseminated to all employees.

Disciplining an employee for a violation that is not specified in the internal labor regulations, not agreed upon in the employment contract, or not provided for in labor law is strictly prohibited.

Dismissal of employees for job abandonment must follow the regulated procedures

The dismissal of employees for job abandonment must be carried out in accordance with the prescribed sequence and procedures. The standard procedure typically includes the following basic steps:

(i) To prepare violation minutes, notify the representative organization of employees at the workplace, and gather evidence to substantiate the violation. Evidence may include attendance records, absence reports, or notices/letters requesting an explanation from the employee.

(ii) To notify and organize a disciplinary meeting. The meeting must include the employee subject to dismissal and the representative organization of employees at the workplace.

It is important to note that the disciplinary meeting must be conducted within the statutory time limit for disciplinary actions, and the meeting result must be formally documented in a valid minutes format.

Enterprises who fail to comply with regulations can face legal risks

If employers dismiss employees without fully complying with the regulations, they may face a range of serious consequences, including legal disputes and liability claims, as well as compensation obligations to the employee who was unlawfully dismissed.

According to Decree 12/2022/ND-CP, employers may be subject to administrative fines of up to VND80 million, depending on the nature and severity of the violation related to the dismissal of employees for job abandonment.

Additionally, the employer may be required to reinstate the employee and pay the full wages corresponding to the period the employee was not working due to the disciplinary dismissal. The wage payment must be based on the contractual wage rate.

>> WHEN MAY EMPLOYEES TERMINATE LABOR CONTRACT WITHOUT PRIOR NOTICE? https://linconlaw.vn/when-may-employees-terminate-labor-contract-without-prior-notice/

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