Recently, many businesses have taken advantage of employees’ lack of legal knowledge to lay off employees in contravention of the law. So, in what cases is the employer entitled to dismiss workers?
- The definition of employee dismissal
Dismissal is the termination of a labor contract by the employer because of the fault of the employee. According to Article 125 of the Labor Code, there are three forms of handling of violations of labor discipline:
– Prolongation of the wage rise period for no more than 6 months; removal from office
Thus, the form of dismissal is the most severe form of handling of violations of labor discipline. In order to protect the rights of employees, Article 126 of the Labor Code 2012 stipulates in detail the following cases in which an enterprise is permitted to fire an employee:
– An employee commits an act of theft, embezzlement, gambling, intentional infliction of injury, use of drugs inside the workplace, disclosure of technological or business secrets or infringement of intellectual property rights of the employer, or acts which cause serious damage or threaten to cause serious damage to the assets or interests of the employer;
– An employee who has been subject to the disciplinary measure of prolonging the wage rise period commits recidivism when the disciplinary record has not yet been written off or an employee who has been subject to the disciplinary measure of removal from office commits recidivism.
– An employee has been absent from work without permission for a total of 5 working days within 1 month or 20 days within 1 year without plausible reasons.
The cases in which an enterprise is entitled to dismiss an employee must be clearly stated in the labor regulations of the enterprise to ensure that the employees know and understand their rights and obligations.
- The order of dismissal of employees
The dismissal of employees must comply with the provisions stated in Article 123 of the Labor Code 2012:
– The employer shall prove the fault of the employee;
– The representative organization of the grassroots-level employees’ collective must participate in the handling;
– The employee must be present and may defend himself/herself or ask a lawyer or another person to defend him/her. The dismissal of employees must be recorded in the minutes.
Enterprises should note that the statute of limitations for dismissing an employee is 6 months from the date the violation is committed. If the statute of limitations expires, the enterprise shall not be entitled to dismiss the employee.
- Unlawful dismissal of employees
In addition to having to comply with regulations on cases in which enterprises are entitled to dismiss employees, enterprises must ensure that the due process of dismissal is complied with. However, if enterprises do not comply with the above requirements, illegal dismissal is resulted.
In the situation of illegal dismissal of employees, enterprises not only violate the law but also infringe upon the rights of employees. In this situation, the employee may lodge a complaint directly or through a trade union to the enterprise leaders and request them to comply with what has been signed in the labor contract and labor regulations. If the complaint does not provide satisfactory results, the employee may file a petition to the local Department of Labor, Invalids and Social Affairs for settlement without mediation.
According to the provisions of law, the statute of limitations for cases of request for conciliation is 6 months and for cases of request for initiation of a lawsuit is 1 year, starting from the date the employee is dismissed in contravention of law. Dismissal of employees is the most severe form of disciplinary action in enterprises, according to the provisions of law. This disciplinary action significantly affects the lives and psychology of employees. Therefore, the comprehending of these regulations is very necessary because it will not only help enterprises comply with legal requirements, but they also help employees protect their rights.
Phan Law Vietnam