Illegal dismissal of employees by the company, what shoud employees do?

Dismissal is the most severe form of labor discipline that the employer applies to the employee. The application of the form of dismissal discipline must be carried out in accordance with the order and procedures of the Labor Code. However, in practice, there are many cases where employers fire employees illegally. So what does the law say on this matter? What should you do when you are dismissed by the company illegally? If you need advice and support, you can contact Apolo Lawyers Law Firm via email contact@apolo.com.vn or hotline - 0903.419.479.

1. Principles of handling labor discipline

Pursuant to Clause 1, Article 122 of the 2019 Labor Code, the principles for disciplinary action are as follows:

• The employer must prove the fault of the worker.
• There must be the participation of a representative organization of workers at the establishment of which the employee being disciplined is a member.
• The employee must be present and have the right to defend himself, by asking a lawyer or a representative organization of worker; In case the person is under 15 years old, a legal representative must be present.
• The handling of labor discipline must be recorded in writing.

2. Basis for labor discipline in the form of dismissal

Article 125 of the 2019 Labor Code stipulates that an employer may apply the form of disciplinary dismissal in the following cases:

• Employees commit acts of theft, embezzlement, gambling; intentionally causing injury, using drugs at work.
• Employees have acts of disclosing business secrets; technology secret; infringement of intellectual property rights; commit acts of causing serious damage or threatening to cause particularly serious damage to property; interests of the employer; Sexual harassment in the workplace is regulated in the labor regulations.
• Employees who have been disciplined for prolonging the time limit for salary increase or dismissed but re-offend while the discipline has not been removed.
• The employee voluntarily quits work for 5 cumulative days within 30 days; 20 cumulative days within 365 days, counting from the first day of voluntarily quitting without a valid reason. Good reasons include: natural disaster, fire; themselves and their sick relatives, certified by a competent medical examination and treatment establishment; other cases specified in the labor regulations.

Pursuant to Point i, Clause 2, Article 69 of Decree 145/2020/ND-CP on the person competent to handle labor discipline includes:

• Persons competent to enter into labor contracts include:
• The legal representative of the enterprise; authorized person as prescribed by law.
• The head of an agency or organization has the legal person status as prescribed by law; authorized person as prescribed by law.
• Representative of the household; cooperative groups, other organizations without legal status; authorized person as prescribed by law.
• Individuals directly employ workers.
• Persons specified in the labor regulations.

Illegal dismissal of employees by the company what should employees do?

Note: The organization of a meeting to handle labor discipline must be ensured within 06 months from the date of the violation. For violations directly related to finance; assets, disclosure of technology secrets, and business secrets are 12 months. In case the employee takes sick leave; being held in custody or temporary detention; waiting for the results of the competent authority; pregnant female workers; maternity leave, raising children under 12 months old. After this time limit expires, if the statute of limitations expires or the statute of limitations is still under 60 days, the statute of limitations may be extended but not exceeding 60 days from the date of expiration of the above-mentioned time limit.

3. Order and procedures for disciplinary handling of dismissal 

Pursuant to Article 70 of Decree 145/2020/ND-CP guiding the order and procedures for disciplinary handling as follows:

3.1. Confirmation of violation

• In case of detecting violations at the time of occurrence: The employer shall make a record of violations and notify the representative organization of employees at the facility. In case the employee is under 15 years old, it must notify the legal representative of the person under 15 years of age.
• In case the violation is detected after the time when the act has occurred: The employer collects evidence to prove the fault of employee.

3.2. Process of meeting to handle labor discipline

- Send a notice to the Employee Representative Organization at the facility, the employee who violates the labor discipline, the legal representative of the employee under 15 years old:

The employer must notify at least 05 working days in advance of the content; time; meeting venue; full name of the person being handled; violations for the representative organization of employees at the grassroots, the violating employee, the legal representative of the person under 15 years old.

The representative organization of the employee, the violating employee, and the legal representative of the person under the age of 15 must confirm attendance at the meeting. In case of not being able to attend the meeting from time to time; the announced location, the change of meeting time and location may be agreed upon; In case no agreement is reached, the employer shall decide the time and place of the meeting.

- Conduct meeting:

The Employer shall conduct the meeting at the time and place announced or agreed by the parties. In case the representative organization of employees; Violating employees, the legal representative of the person under 15 years old does not confirm attendance or is absent, the employer still conducts the meeting to handle labor discipline.

Contents of the meeting must be recorded in minutes and signed by attendees. In case someone does not sign the minutes, clearly state their full name and reason for not signing (if any) .

3.3. Issuing a decision on disciplinary action

The decision on disciplinary action for dismissal must be issued within the statute of limitations specified in Article 123 of the Labor Code 2019. The decision must be signed by a competent person.

Persons competent to handle labor discipline include: Persons competent to enter into labor contracts specified in Clause 3, Article 18 of the Labor Code 2019 or; people specified in the labor regulations (point i, clause 2, Article 69 of Decree 145/2020/ND-CP).

3.4. Submit disciplinary action decision

Within the prescribed statute of limitations, the decision on disciplinary action must be sent to the employee, the legal representative of the employee under the age of 15 and the representative organization of the employee at the establishment.

Note: Employers are not allowed to handle labor discipline against employees who are in the following period:

• Sick leave, convalescence; leave with the consent of the employer.
• Being held in custody.
• Waiting for the results of the competent authorities to investigate, verify and conclude on the violations specified in Clauses 1 and 2, Article 125 of the Labor Code 2019.
• Female employees are pregnant, take maternity leave, and raise children under 12 months of age.
• Do not handle labor discipline for employees who violate labor discipline while suffering from mental illness or another disease that makes them lose the ability to perceive or control their behavior.

4. The company illegally fired, what should employees do? 

4.1. Submit a complaint

- Complaint to the employer for the first time, requesting to cancel the decision on dismissal:

Pursuant to Clause 1, Article 15 of Decree No. 24/2018/ND-CP, the employer has the authority to settle the first-time complaint against the complained decision or act on his/her labor.

Time limit for first-time settlement: No more than 30 days from the date of acceptance for ordinary cases; for complicated cases, the time limit for settlement shall not exceed 45 days from the date of acceptance.

- Second complaint to Chief Inspector of Department of Labour, Invalids and Social Affairs:

If the first complaint is not resolved or; Employees who do not agree with the complaint settlement decision can make a second complaint to the Chief Inspector of the Department of Labor, War Invalids and Social Affairs, where the employer is headquartered (Clause 2, Article 15 of Decree No. 24/2018/NĐ-CP).

Time limit for settlement of second-time complaint: No more than 45 days from the date of acceptance for ordinary cases; for complicated cases, the time limit for complaint settlement shall not exceed 90 days from the date of acceptance.

4.2. Mediation at Labor Mediator 

According to point a, clause 1, Article 188 of the Labor Code, a dispute over labor discipline in the form of dismissal is not required to go through the conciliation procedure of the labor conciliator before requesting the Labor Arbitration Council or the Labor Arbitration Council. ; Court resolved. However, the employee still has the right to request the Labor Mediator to mediate the dispute within 6 months from the date the employer issues the dismissal decision but the employee believes that his/her legitimate rights and interests are infringed under Clause 1. Article 190 of the Labor Code.

4.3. File a lawsuit to the Court

The employee may file a lawsuit to the district-level Court where the head office of company is located to request the Court to cancel the dismissal decision; accept employees back to work or request the Company to compensate for damage (if any).

4.4. Report to the Police Agency

Pursuant to Clause 1, Article 162 of the 2015 Penal Code, as amended in 2017, stipulates: Those who, for personal gain or other personal motives, commit one of the following acts, causing serious consequences, shall be subject to a fine of between VND 10,000,000 and 100,000,000 and non-custodial reform. kept for up to 1 year or sentenced to between 3 months and 1 year of imprisonment:

• Illegally issuing decisions on forced severance of civil servants and public employees.
• Illegal dismissal of employees.
• Forcing or threatening to force civil servants, public employees and employees to quit their jobs.

Thus, an employee can report a crime to the investigating agency if the illegal dismissal of employer shows signs of constituting the crime of forcing public employees to resign as prescribed in Article 162 of the 2015 Penal Code. revised 2017.

Illegal dismissal of employees by the company what should employees do?

With a team of experienced lawyers in the field of labor, Apolo Lawyers Law Firm provides effective and regulated solutions for clients in handling labor issues. Besides, Apolo Lawyers Law Firm also provides full service with reasonable cost for customers.

Consulting service fees; implementation of legal procedures will be adjusted depending on each case. Immediately contact Apolo Lawyers Law Firm via email contact@apolo.com.vn or hotline - 0903.419.479 for legal advice from a lawyer.

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