maintain their jobs for reasons stipulated by law, if the employer terminates their labor contracts, they will not be able to find other jobs, affecting the employment, income and life of the employee and their family. Therefore, when the employer violates these principles, the employer's decision to terminate the labor contract will be considered illegal.
The following case of Naria Vina Company Limited firing an employee while he was in the hospital is an example [1]:
On June 21, 2013, Mr. Chu Van Khai (residing at Team I, Van Xa Commune, Kim Bang, Ha Nam) signed a labor contract with Naria Vina Company Limited to work at the foundry, a workshop classified as "hazardous". His job requires him to be constantly exposed to hot air, dust and toxic fumes. At the end of 2013, the Phu Ly City Health Department (Ha Nam) came to conduct a periodic health check for all workers. The result of the diagnosis was that Mr. Khai had "pulmonary tuberculosis". The Health Department proposed that the company let him take time off to receive treatment at Kim Bang District General Hospital and was approved. In the first 10 days of testing at the hospital, the result was that he had pulmonary tuberculosis. The hospital transferred Mr. Khai to the isolation tuberculosis department for long-term treatment. He was treated for 60 days in the isolation tuberculosis department, then transferred to the Van Xa Commune Health Station for another 4 months of treatment. In March 2014, he was still a worker at Naria Vina Company Limited, but the company did not pay insurance for Mr. Khai. While he was undergoing treatment, the company had someone collect his health insurance card and terminated his labor contract.
In Judgment No. 02/2016/LD-ST, dated February 29 and March 1, 2016, the People's Court of Ha Nam Province stated in its comments: The Court conducted mediation between the parties but failed to reach a settlement. Considering the lawsuit request of Mr. Chu Van Khai, it is found that: the decision of Naria Vina Company Limited to unilaterally terminate the labor contract with Mr. Chu Van Khai while he was being treated at a hospital or medical facility is contrary to the provisions of Clause 1, Article 39.
Labor Code; regarding procedures, the company did not notify employees in advance within the time limit specified in Clause 2, Article 38 of the Labor Code, did not make a record of violations, did not make a record of handling employees with the participation of the company's trade union; the company's unilateral termination of the labor contract was without legal basis, affecting the employee's right to work and benefits.
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2.1.3.2. Violation of the principle of dismissal of employees
The dismissal of employees must comply with the principles of handling labor discipline stipulated in Article 123 of the 2012 Labor Code. If one of the general principles of handling discipline is violated, the employer's decision to dismiss the employee will be illegal. The principles related to the form of disciplinary dismissal according to the content of the Labor Code are:
- Multiple forms of labor discipline may not be applied to one violation of labor discipline. When an employee simultaneously commits multiple violations of labor discipline, only the highest form of discipline corresponding to the most serious violation shall be applied.
According to this principle, each violation is only subject to one form of labor discipline, that is, if one form of labor discipline has been applied, the employer cannot apply another form of disciplinary action to the violation. In addition, when an employee simultaneously commits multiple violations of labor discipline, such as a violation that is subject to a disciplinary reprimand according to the Labor Regulations, and a violation that is subject to a disciplinary action of extending the salary increase period, the employee will only be subject to a disciplinary action of extending the salary increase period (the highest form of discipline) and cannot combine the two forms of discipline to apply the disciplinary action of dismissal. Thus, if the employer applies the disciplinary action of dismissal with one or more other forms of discipline to a violation of the employee, this disciplinary decision is illegal. The employer's disciplinary decision is also considered illegal in the case of dismissal of an employee who has
Many acts of labor discipline violation but none of them are cases of disciplinary dismissal.
The regulation of this principle is reasonable and suitable for reality when conducting labor discipline, therefore requiring employers to comply to avoid illegal dismissal.
- Labor discipline shall not be applied to employees during the following periods: a) On sick leave, nursing leave; leave of absence with the employer's consent; b) Being detained or imprisoned; c) Waiting for the results of the competent authority's investigation, verification and conclusion of the violation; d) Female employees who are pregnant or on maternity leave; employees raising children under 12 months old.
For the first three cases above, when the leave period ends, if there is still time to handle labor discipline, the employer may handle the discipline immediately. If the time limit has expired, it will be restored but not later than 30 days from the date of expiration of the above time limit. Particularly for the case of female employees who are pregnant, on maternity leave; employees raising children under 12 months old, the following instructions are given: Employers may not handle labor discipline against employees who are biological fathers, biological mothers or legal adoptive fathers or adoptive mothers who are raising children under 12 months old. When the time limit for handling children under 12 months old has expired, the time limit for handling labor discipline may be extended, but not more than 60 days from the date of expiration of the time limit for handling children under 12 months old [7, Article 29].
The law's provision of this "safe" time for employees is reasonable to ensure their rights, avoid material or mental impacts on employees, and ensure the maintenance of employment and income during difficult times, especially for female employees during pregnancy or childbirth.
Current reality shows that there are many cases where employers violate the labor laws.
The above regulation is to dismiss the subjects mentioned in Clause 4, Article 123 of the Labor Code as analyzed, leading to the dismissal being illegal. When their rights are violated, employees often win when suing the employer for the illegal dismissal decision because it is easy to prove that at the time of the decision to dismiss the employee, there were reasonable reasons according to the law.
A hypothetical situation is set forth in this case as follows: Ms. M worked for Company N under an indefinite-term labor contract from May 1, 2015. During her employment, she re-offended the behavior that had been previously disciplined by extending the salary increase period but had not yet been cleared of the discipline. The Company's Board of Directors held a meeting to handle labor discipline according to the prescribed procedures. After the meeting ended, all participating members signed the minutes approving the form of disciplinary dismissal without any other comments. The Company Director signed the decision to dismiss Ms. M on July 1, 2015. After receiving the dismissal decision, Ms. M and Company N fulfilled all obligations to the other party. 20 days later, after a health check, Ms. M learned that she was 30 days pregnant. So, in this case, can Ms. M return to Company N to present her pregnancy certificate and request the Company to cancel the dismissal decision?
Although this is just a hypothetical situation, when it actually happens, it will make the employer confused when handling it. In this case, the employee has grounds to not be subject to labor discipline, because at the time of the disciplinary dismissal, the employee was pregnant. Although both the employer and the employee were unaware of this (as shown by the employee not defending herself, providing evidence and signing the minutes of the labor discipline meeting) and both parties have fulfilled all their obligations after the dismissal, but according to the provisions of Point d, Clause 4, Article 123 of the Labor Code, in this case, the decision to dismiss is illegal, and the employer must accept the employee back to work and compensate according to the provisions of the law. In this situation, the violation is not
It must be due to the employer or the employee, but from objective causes, so the employer should sit down with the employee to negotiate a solution.
- Do not take disciplinary action against an employee who violates labor discipline while suffering from a mental illness or another disease that causes loss of cognitive ability or ability to control his or her behavior.
This is a general principle for all types of legal liability. In this case, the employee is not able to perceive and control his/her behavior, so he/she is not subject to disciplinary dismissal. Therefore, if the employer takes disciplinary dismissal against the employee in the above cases, it is illegal. In reality, this case rarely happens.
- Prohibit the use of fines and salary cuts as disciplinary measures.
In fact, employers often violate this principle because they think that applying fines and salary cuts instead of disciplinary action will be quicker, more effective and avoid more cumbersome procedures than disciplinary action. However, dismissal is the highest form of discipline, only applied to serious violations. Therefore, if using fines and salary cuts instead of dismissal, it will lose the meaning and severity of corporate discipline when the employee deserves to be removed from the collective. Therefore, if employers apply fines and salary cuts instead of dismissal, it will be illegal.
- Prohibit disciplinary action against employees who commit violations not specified in the labor regulations.
The Labor Regulations are documents that clearly stipulate the forms of labor discipline corresponding to each violation. Employers are only allowed to dismiss employees if they fall into one of the cases specified in the Labor Regulations. This ensures that employers have grounds to defend their dismissal decisions. All cases of dismissal for acts not included in the Labor Regulations of the employer are considered illegal dismissal.
The above are the basic principles that employers must follow when terminating the labor contract with employees in the case of unilateral termination of the labor contract or disciplinary dismissal. If any of these principles is violated, the decision to terminate the labor contract or the decision to dismiss the employee will be considered illegal and will have to bear certain legal consequences. Therefore, before making a decision, employers should consider and review these regulations carefully to strictly implement them, only then will it not lead to a violation of the termination of the labor contract by the employer, regardless of whether the employer is entitled to terminate the labor contract or the employee is subject to disciplinary dismissal.
The practice of resolving labor disputes at the Court today shows that disciplinary dismissal cases are increasingly complex and diverse, while legal regulations have not yet provided a thorough solution, there are still many different opinions regarding the legality of this dismissal decision. Some cases are occurring as follows:
- Firstly , the employee has violated the cases of applying the disciplinary measure of dismissal in Article 126 of the Labor Code, but the employer has not yet issued a decision on dismissal, the employee has unilaterally terminated the labor contract and does not return to work. So, in this case, is the employer's decision on dismissal considered illegal or not?
In this case, there is a view that when the employee unilaterally terminates the labor contract, the labor relationship also ceases to exist, therefore the employer does not have the right to handle labor discipline, and the decision to dismiss in this case is illegal. However, there is also a view that, although the employee unilaterally terminated the labor contract, ending the labor relationship, the employee's violation occurred before when the labor relationship still existed, so the employer still has the right to handle disciplinary dismissal.
In principle, the employer cannot “impose power” when the labor relationship no longer exists. Therefore, when the employee unilaterally terminates the labor contract and does not return,
In case of illegal unilateral termination of labor contracts, the employer can only base on the provisions of the law on illegal unilateral termination of labor contracts of employees to handle the case.
- Second , the employer made a decision to dismiss the employee and it became legally effective, but then realized that this decision was illegal, so he proactively made another decision to withdraw the dismissal decision and at the same time notified the employee to return to work, but the employee did not agree and still filed a lawsuit in court requesting the court to conclude that the dismissal decision was illegal, and at the same time demanded his rights. In this case, is the employer's decision to dismiss the employee illegal? How should the employer compensate the employee?
There are also many different views on this case. One view is that the employer has the right to issue a disciplinary dismissal decision, and also has the right to cancel it if it is deemed illegal. Therefore, when the employer has canceled the dismissal decision, the Court cannot declare the decision illegal, and when the employer has notified the employee to return to work but they do not return to work, it is considered that they have voluntarily terminated the contractual relationship. Therefore, the employer is not responsible for compensation. Another view is that, although the employer has withdrawn the dismissal decision, this decision is illegal, so the Court still has grounds to resolve it. At the same time, the dismissal decision has come into legal effect, and the employee also sued because of that decision, the employer who made the decision must be responsible before the law for its decision. This case can be considered based on the following similar case:
On April 7, 2014, Mr. Nguyen Van Thuy and Ha Hai Electromechanical Joint Stock Company (56/6 National Highway 1A, TTN Ward, T District, Ho Chi Minh City) signed Labor Contract No. 016-14 for a term of 70 days starting from April 7, 2014 to June 16, 2014, probationary period from April 7, 2016 to June 6, 2014, position of technical staff. On June 17, 2014, the Company and Mr. Thuy signed Labor Contract No. 016-14 for a term of 01 year, from June 17, 2014 to June 16, 2015.
On July 16, 2014, Mr. Thuy submitted a request to terminate his labor contract to the company. Because the company did not agree, on the same day, Mr. Thuy submitted a request for 5 days of leave, starting from July 17, 2014 to July 22, 2014. Mr. Thuy sent this request to the company and did not keep it. The company stated that it did not receive any request for leave from Mr. Thuy, and that Mr. Thuy quit his job on his own initiative. Therefore, Mr. Thuy could not prove that he requested 5 days of leave with the approval of the company.
When Mr. Thuy returned to work on July 23, 2014, the company announced that he was fired for taking more than 3 days off without notice, and the company also did not pay his salary for June 2014 and part of his salary for July 2014. On August 5, 2014, Mr. Thuy received the Dismissal Decision No. 86/2014/QD signed on July 23, 2014 from the Company.
On August 6, 2014, realizing that the Decision on dismissal was illegal, the Company corrected the error by the Decision on termination of the Labor Contract No. 106/2014/QD according to the wishes of the Employee. The Trial Panel determined that Mr. Nguyen Van Thuy was the person who expressed his will to unilaterally terminate the Labor Contract with the Company based on his application for termination of the Labor Contract. The termination of the Labor Contract originated from the will of the Employee. From there, there is a basis to determine that the Company's decision to terminate the Labor Contract in the form of dismissal was incorrect in form, but later corrected the error by the Decision on termination of the Labor Contract in accordance with the will of the Employee, and the Employee's rights were not affected by this error. Dismissal Decision No. 86/2014/QD signed on July 23, 2014 has been replaced by Labor Contract Termination Decision No. 106/2014/QD dated August 6, 2014, so the request for the Court to cancel the above Dismissal Decision when it has been replaced is not acceptable [28].
Returning to the case mentioned above, in case the employer decides to withdraw the dismissal decision because it is illegal, when the employee files a lawsuit in court, the illegal decision no longer exists and is replaced by the Decision No.