Dismissal is a form of labor discipline prescribed in Clause 3, Article 125 of the Labor Code 2012 (LC 2012) and also one of the termination of labor contract cases prescribed in Clause 8, Article 36 of LC 2012. Accordingly, dismissal discipline is only applied (i) in cases regulated by law; (ii) if it remains within the statute for handling dismissal and (iii) when in compliance with the provisions of the procedure; if violated, the dismissal is considered to be illegal, and the employer must bear legal consequences due to the illegal dismissal.
Cases which apply to the dismissal discipline form
An employer has the right to dismiss an employee in the following cases: (i) the 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; (ii) the employee has been subject to the disciplinary measure of prolonging the wage rise period and commits recidivism when the disciplinary record has not yet been written off, or has been subject to the disciplinary measure of removal from office and commits recidivism; (iii) the employee has been absent from work without permission for a total of five working days within 1 month, or 20 days within 1 year, without plausible reasons.
In addition, it should be noted that an employer is not allowed to dismiss a female employee because she gets married, pregnant, is on maternity leave or is rearing children under 12 months of age, and it is obligated not to conduct dismissal discipline for an employee who is currently: (i) taking sickness or convalescence leave or a leave with the employer’s consent; (ii) kept in custody or temporary detention; (iii) waiting for results of verification and conclusion of a competent agency for acts 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; (iv) a female employee who gets pregnant or is on maternity leave or rearing a child under 12 months of age.
Statute for handling dismissal discipline
The statute for handling dismissal discipline is the term for which an employer has the right to discipline an employee. If it expires, the employer is not entitled to dismiss an employee. According to prevailing laws, the statute for handling dismissal discipline is six months from the violation date; such a term is 12 months if the violation is directly related to finance and assets or disclosure of technological or business secrets. In case the employer is unable to handle discipline because the employee is (i) currently taking sickness or convalescence leave or a leave with the employer’s consent; (ii) kept in custody or temporary detention; (iii) or waiting for results of verification and conclusion of a competent agency for violations and the statute expires, the employer may extend the term of the handling discipline, but not by more than 60 days from the expiry date of the above facts.
Procedure for dismissing an employee
An employer must comply with the following procedures when dismissing an employee: (i) the employer must prove the fault of the employee; (ii) the employer has to send written notice at least five working days prior to the meeting on handling dismissal discipline to the following persons so that they can attend: a grassroots representative organization of the labor collective of the employee (if the employee is under 18 years of age, his/her parents or legal representatives must attend); (iii) the meeting shall be conducted in the presence of all of the above participants, in case the employer has sent notice in writing 03 times but one of the participants is still absent, the employer may hold the meeting without her/him; (iv) the meetings on labor discipline must be made in minutes which are signed by all of the participants and the minutes’ writer; if one of the participants does not sign the minutes, the reason for such a refusal must be clearly provided.
Note for enterprises
As mentioned above, a dismissal must comply with the provisions on dismissal cases, the statute of handling dismissal discipline and dismissal procedures; if there are any violations, a dismissal is considered illegal. The legal consequences of an illegal dismissal are (i) the employer reinstates the employee in accordance with the original labor contract, pays the wage, social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least two months’ wage in accordance with the labor contract (“Damages”); (ii) if the employee does not wish to return to work, the employer shall pay the Damages and also a severance allowance; (iii) if the employer does not want to reinstate the employee and the employee agrees, in addition to the Damages and the severance allowance, the two parties shall negotiate an additional compensation which must be equal to at least two months’ wage in accordance with the labor contract in order to terminate the labor contract; (iv) in case the job agreed to in the labor contract is no longer vacant and the employee still wishes to work, the employer shall pay the Damages mentioned above and both parties shall negotiate to modify and supplement the labor contract.
In addition, in accordance with applicable laws, the period within which an employee may sue when the employee deems her/his legitimate rights and interests are compromised due to the illegal dismissal is 01 year from the date of discovering the violating act. In practice, there are many cases in which the employees do not sue immediately, instead waiting until near the end of this 12 month period. If an employer loses such a case, they shall have to compensate up to 10 months’ worth of salary to the employee. In particular, from 1 July 2016, the effective date of the Criminal Code 2015, an illegal dismissal may receive a sanction of imprisonment; therefore enterprises need to take into account the legal provisions upon dismissing employees in order to avoid the damage caused by an illegal dismissal.
The content above is provided in the Labour Code 2012, guiding documents and the Criminal Code 2015.