Forms of labor discipline in current Vietnamese labor law

From a legal perspective, labor discipline is a synthesis of regulations on the responsibilities and obligations of employees towards agencies, organizations and employers.

During the working process, employers have the right to issue principles and forms of disciplinary action against violations of labor discipline by employees to ensure labor order in their units. On that basis, employees are responsible for complying with those regulations and principles of the employer. In case employees do not comply with those regulations, they may be subject to disciplinary action corresponding to their violations. So what is labor discipline?

The Vietnamese Labor Law textbook of Hanoi Law University provides the concept of labor discipline as follows : "Labor discipline is the process by which employers consider and resolve violations of labor discipline by forcing them to undergo one of the forms of discipline prescribed by the state" [18, p. 307]. Forcing employees to undergo one of the forms of disciplinary action prescribed by the state when they commit violations shows that this is a highly coercive measure, an inevitable requirement in establishing discipline when employers carry out management activities. Thus, labor discipline measures are also known as applying labor discipline responsibilities.

The Vietnamese Labor Law textbook of the Faculty of Law, Hanoi National University introduces the concept of disciplinary responsibility in labor law as follows: "Disciplinary responsibility in labor law is a type of legal responsibility applied by employers to those who violate labor discipline by forcing them to suffer one of the forms of discipline prescribed by the State" [19, p. 273].

Regarding this issue, Dr. Tran Thi Thuy Lam said: "Labor discipline responsibility is a type of legal responsibility applied by employers to employees who violate labor discipline by forcing them to suffer one of the forms of labor discipline" [25, p.37].

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In the author's opinion, labor discipline or responsibility for labor discipline is the action that the employer takes against employees who violate labor discipline by means of handling according to regulations.

In general, each viewpoint has a different way of expressing it, but it can be seen that no matter how it is expressed, labor discipline or responsibility for labor discipline has the following main characteristics:

- The subject with the authority to handle labor discipline is the employer:

Employers have the right to take disciplinary action against employees who violate discipline. This is a right that comes from the right to manage labor, not the content of the agreement between the employer and the employee. Employees working in the labor-using units are required to comply with the regulations on labor discipline issued by the employer. However, the issuance of regulations on labor discipline as well as the application of labor discipline measures by the employer must be within the framework of the provisions of the law, or in other words, this right is limited. If there is no limitation on this, it can lead to abuse of the employer's rights, they can arbitrarily discipline employees or even dismiss employees, which will create disadvantages for employees.

The employer here can be a business, agency, organization with legal status or an individual who meets the prescribed conditions. The representative

Representing a legal entity or individual to directly or authorize another person to handle labor discipline against employees who violate labor discipline according to regulations.

- The subject subject to disciplinary measures is the employee:

A person subject to labor discipline is an employee who participates in labor relations and commits acts that violate the obligations mainly stipulated in the labor regulations or the legal management of the employer. According to the provisions of the law, employees in labor relations are Vietnamese citizens who are at least 15 years old and have labor legal capacity and labor behavior capacity; and foreigners working in Vietnam who are 18 years old or older, have professional qualifications and health to do the prescribed jobs, and have a work permit issued by a competent State agency in Vietnam. For Vietnamese employees under 15 years old, they are only allowed to do jobs permitted by law, under normal working conditions and must have the consent of their parents, guardians, and legal sponsors. Thus, disciplinary responsibility or disciplinary measures are only imposed on employees when they participate in a certain relationship. If their illegal acts are committed outside the framework of labor relations, they will not be prosecuted or disciplined.

- On the basis of applying disciplinary action

The basis for applying labor discipline to employees is the act of violating labor discipline. In other words, the employer can only base on the employee's disciplinary violation to handle labor discipline. The employee's violation of labor discipline here can be intentional or unintentional, violating the labor regulations of the unit or the employer's management rights and must be handled according to the provisions of law. More specifically, the act of violating labor discipline is

Performing actions prohibited by labor regulations or failing to perform actions required by labor regulations. For example: Labor regulations stipulate that employees must comply with working hours and schedules at the company, but the employee does not comply. Or labor regulations stipulate that employees are not allowed to disclose the technological secrets of the unit, but the employee still deliberately discloses them. Note that the obligations of employees according to the provisions of labor regulations and the obligations of employees according to labor law in general are not completely identical. In general, labor obligations are broader than those under labor regulations. In other words, obligations under labor regulations are a major, important part of general labor obligations. For example, in addition to complying with the obligations in the labor regulations, employees must also comply with the obligations committed in the labor contract, or stipulated in the collective labor agreement... Therefore, not all violations of labor obligations by employees are subject to labor discipline by the employer.

When handling labor discipline, employers must consider the severity of the fault, whether it is intentional or unintentional, and the specific circumstances to choose the appropriate sanction to apply to the employee's violation.

1.1.2. Forms of labor discipline

Handling labor discipline is one of the contents of the employer's labor management rights. The employer has the right to handle labor discipline against employees when they violate labor discipline. However, based on the level of violation of labor discipline, employees can be handled according to one of the disciplinary forms. Specifically as follows:

* “Reprimand” :

This is the lightest form of disciplinary action that an employer can take against an employee; it is a form of warning for an employee who commits a first-time violation but at a minor level. This form is implemented in two ways: verbal or written reprimand, depending on the severity of the violation. Through the form of disciplinary action, the employer wants to remind and prevent more serious violations that may occur in the future.

However, the current labor law does not specifically stipulate which violations of labor discipline will be subject to the form of disciplinary reprimand, but only states general principles to ensure the autonomy of the employer. Therefore, in order to have a clearer and more specific basis for applying the form of disciplinary reprimand to employees, employers should specifically stipulate the violations of labor discipline that will be handled in the form of reprimand in the labor regulations of their unit.

Different from the general principles of disciplinary action against employees in current labor law, the Law on disciplinary action against civil servants specifically stipulates the form of disciplinary action against civil servants who commit one of the following violations:

- Having an arrogant, authoritarian attitude or causing difficulties or harassment to agencies, organizations, units or individuals in the performance of official duties;

- Failure to perform assigned duties without justifiable reasons;

- Causing disunity in agencies, organizations and units;

- Unauthorized absence from work, total from 03 to less than 05 working days in one month;

- Illegal use of public property;

- Confirm legal documents for ineligible people;

- Violating the provisions of the law on anti-corruption; practicing thrift and combating waste; labor discipline; gender equality; preventing and combating prostitution and other provisions of the law related to civil servants.

* “Extend salary increase period not exceeding 06 months; dismissal”:

This form of discipline is applied to employees who commit more serious violations than the form of reprimand or have committed violations specified in the labor regulations of the unit. The employer shall base on the level of the employee's disciplinary violation, the actual situation of the unit and the employee's circumstances to apply the form of extending the salary increase period for no more than 06 months or dismissal. In reality, the work of many employees is different, leading to different obligations, so the current law does not have specific regulations on which violations will be subject to this form of discipline (only providing general principles to ensure the employer's management rights) which is reasonable and suitable to reality. However, therefore, employers should specify the violations that will be subject to this form of disciplinary action in the unit's labor regulations, as a basis and basis for disciplinary action against employees who commit appropriate violations.

* “Fire” :

According to the Vietnamese dictionary, dismissal is understood as the act of dismissing an employee or no longer using him/her by the employer [18]. According to the Dictionary of Legal Terms, dismissal of an employee is a case where the employer unilaterally terminates the labor relationship with the employee when they violate labor discipline as stipulated in the unit's labor regulations or the law [22, p.143].

Dismissal is the most severe form of discipline that an employer has the right to apply to an employee who has

Violation. Dismissal is aimed at removing from the labor collective those workers who lack discipline and seriously violate the order of the enterprise. Therefore, when dismissed, the employee will no longer be able to participate in that labor relationship. The nature of dismissal is the unilateral termination of the labor contract by the employer against the employee when they have violated discipline. Therefore, according to the laws of many countries such as Japan, France, the US, and Korea, there is no distinction between unilateral termination of the labor contract and dismissal, but both are called dismissal or unilateral termination of the contract. Cases of dismissal are often stipulated in the labor contract regime. Therefore, there are cases where the employer dismisses for economic reasons of the enterprise (such as changing the technological structure, merging, separating the enterprise, etc.), and there are also cases due to disciplinary violations of the employee. For example, in Japan, case law has recognized the dismissal of employees for economic reasons. However, dismissal of employees in this case is only applied as a last resort [28]. According to the Korean Labor Standards Law, all cases where an employer terminates the relationship with an employee are called dismissal. Dismissal of employees is regulated in the chapter on Labor Contracts [20].

Some countries have laws that limit dismissal. For example, in the Japanese Labor Standards Act (1976), employers may not dismiss workers who have suffered work-related injuries or occupational diseases and are undergoing treatment for 30 days afterward; nor may they dismiss a pregnant woman or a woman on maternity leave (6 weeks before and after giving birth) for 30 days afterward (Article 19). Or in the Korean Labor Standards Act (1997), employers may not dismiss, stop production, suspend, transfer workers, reduce wages, or take any other punitive measures against workers.

workers without justifiable reasons. Business owners are not allowed to dismiss workers during temporary suspension of work for medical treatment or occupational accidents; and are not allowed to dismiss female workers before and after giving birth (Article 23) [12].

In Vietnam, there is also a concept that dismissal is a case of unilateral termination of a labor contract, however, it is considered that this is a special case of unilateral termination of a labor contract, so it is necessary to have separate regulations. Because dismissal is the most severe form of discipline to eliminate employees who have committed serious violations from the unit; therefore, to ensure that the employer's handling of labor discipline is in accordance with the law, as well as to avoid abuse of power, sometimes for their own benefit, they illegally dismiss employees, so Vietnamese labor law stipulates cases where employers apply the form of disciplinary dismissal to employees, including:

First, the employee commits acts of theft, embezzlement, gambling, intentional injury, drug use within the workplace, discloses business secrets, technological secrets, infringes upon the intellectual property rights of the employer, commits acts that cause serious damage or threaten to cause especially serious damage to the property or interests of the employer;

Second, an employee who has been disciplined by extending the salary increase period re-offends during the period when the disciplinary action has not been cleared, or an employee who has been disciplined by dismissal from office re-offends. Re-offending is when an employee repeats a violation that has been disciplined but has not been cleared of the disciplinary action according to regulations;

Applying the form of disciplinary dismissal to employees who have been disciplined with the form of extending the salary increase period but re-offend during the period when the discipline has not been cleared or who have been dismissed but still re-offend during the period when the discipline has not been cleared is completely appropriate, because applying a higher form of disciplinary action (dismissal) will affect the order and discipline of the unit as well as increase the awareness of employees to comply with regulations.

Forms of labor discipline in current Vietnamese labor law - 2

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