Chương VIII Bộ Luật lao động 2012: Kỷ luật lao động, trách nhiệm vật chất

Chapter VIII

LABOR DISCIPLINE AND MATERIAL RESPONSIBILITIES

Section 1. LABOR DISCIPLINE

Article 118. Labor discipline

Labor discipline means regulations on compliance with time requirements, technology and production and business administration as stipulated in the internal working regulations.

Article 119. Internal working regulations

1. An employer employing 10 or more employees must have internal working regulations in writing.

2. The contents of internal working regulations must not be contrary to the labor law and other relevant laws. The internal working regulations contain the following principal contents:

a/ Working time and rest time;

b/ Order at workplace;

c/ Occupational safety and hygiene at workplace;

d/ Protection of assets and technological and business secrets and intellectual property of the employer;

e/ Employees’ violations of labor discipline, forms of dealing with violations of labor discipline, and material responsibilities.

3. Before the issuance of the internal working regulations, an employer shall consult the representative organization of the grassroots-level employees’ collective.

4. The internal working regulations must be notified to employees and their key contents must be displayed at necessary places in the workplace.

Article 120. Registration of internal working regulations

1. An employer shall register its internal working regulations with the provincial-level state management agency of labor.

2. Within 10 days from the date of issuance of the internal working regulations, an employer shall submit a dossier for registration of the internal working regulations.

3. Within 7 working days from the date of receipt of a dossier for registration of the internal working regulations, if the internal working regulations have contents contrary to law, the provincial-level state management agency of labor shall notify and instruct the employer to make necessary amendments and supplements and the regulations must be re-submitted for registration.

Article 121. Dossier for registration of internal working regulations

A dossier for registration of the internal working regulations must comprise:

1. An application for registration of the internal working regulations;

2. Documents of the employer related to labor discipline and material responsibilities;

3. Minutes of comments of the representative organization of the grassroots-level employees’ collective;

4. The internal working regulations.

Article 122. Validity of internal working regulations

The internal working regulations will be effective 15 days after the date the provincial-level state management agency of labor receives the registration dossier of the internal working regulations, except the case specified in Clause 3, Article 120 of this Code.

Article 123. Principles and order for handling violations of labor discipline

1. The handling of a violation of labor discipline is provided as follows:

a/ The employer shall prove the fault of the employee;

b/ The representative organization of the grassroots-level employees’ collective must participate in the handling;

c/ The employee must be present and may defend himself/herself or ask a lawyer or another person to defend him/her; if the employee is under 18 years old, his/her parent or at-law representative must participate in the handling;

d/ The handling of the violation of labor discipline must be recorded in the minutes.

2. It is prohibited to impose more than one form of discipline for a single violation of labor discipline.

3. For an employee who simultaneously commits more than one violation of labor discipline, it is only allowed to apply the highest form of discipline corresponding to the most serious violation.

4. Labor discipline may not be imposed for violations committed by an employee who is currently:

a/ Taking sickness or convalescence leave or a leave with the employer’s consent;

b/ Kept in custody or temporary detention;

c/ Waiting for results of verification and conclusion of a competent agency for acts of violation specified in Clause 1, Article 126 of this Code;

d/ A female employee and pregnant or on maternity leave; rearing a child under 12 months of age.

5. No labor discipline will be imposed on an employee who violates the internal working regulations while suffering a mental disorder or another disease which deprives him/her of the capacity to perceive or control his/her acts.

Article 124. Statute of limitations for handling violations of labor discipline

1. The statute of limitations for handling a violation of labor discipline is 6 months from the date the violation is committed. The statute of limitations for handling a violation of labor discipline directly related to finance and assets or disclosure of technological or business secrets is 12 months.

2. Upon expiry of the period specified at Points a, b or c, Clause 4 of Article 123, if the statute of limitations for handling violations of labor discipline has not yet expired, the employer may immediately handle the case, and if the statute of limitations has expired, it may be extended but for no more than 60 days from the expiry date mentioned above.

Upon expiry of the period specified at Point d, Clause 4 of Article 123, if the statute of limitations has expired, it may be extended for no more than 60 days from the date of expiry mentioned above.

3. Decisions on handling violations of labor discipline must be issued within the time limits specified in Clauses 1 and 2 of this Article.

Article 125. Forms of handling of violations of labor discipline

1. Reprimand.

2. Prolongation of the wage rise period for no more than 6 months; removal from office.

3. Dismissal.

Article 126. Application of dismissal as a form of discipline

Dismissal may be applied by an employer as a form of discipline in the following cases:

1. 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;

2. 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;

Recidivism means that an employee re-commits the same violation for which he/she has been disciplined while his/her disciplinary record has not yet been written off under Article 127 of this Code.

3. 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.

Plausible reasons include natural disaster, fire, illness of the employee or his/her next of kin with certification by a competent health establishment and other events defined in the internal working regulations.

Article 127. Writing off of disciplinary records, reduction of the duration of labor discipline

1. After 3 months for an employee who is reprimanded or after 6 months for an employee who is subject to the disciplinary measure of prolonging the wage rise period counting from the date his/her violation is handled, the employee concerned will have his/her disciplinary record be automatically written off if he/she does not commit recidivism. For an employee who is subject to the disciplinary measure of removal from office and commits another violation of labor discipline after 3 years, he/she will not be regarded as having committed recidivism.

2. An employee who is subject to the disciplinary measure of prolonging the wage rise period and has served half of the duration of the discipline showing progress may be considered by the employer for a reduction of such duration.

Article 128. Prohibited acts when handling violations of labor discipline

1. Infringing upon the body or dignity of the employee.

2. Applying a fine or wage reduction instead of a disciplinary measure.

3. Disciplining an employee who has committed a violation which is not defined in the internal working regulations.

Article 129. Work suspension

1. An employer may suspend an employee from working if the employer considers that the case of violation is complex and any continued performance of the work by the employee can cause difficulties to verification work. Work suspension may only be applied after the representative organization of the grassroots-level employees’ collective has been consulted.

2. The period of work suspension must not exceed 15 days, or 90 days in special cases. During the period of work suspension, the employee is entitled to 50 per cent of the wage he/she receives prior to the suspension.

Upon the expiry of the period of work suspension, the employer must receive the employee back to his/her work.

3. In case the employee is disciplined, he/she is not required to reimburse the wage advanced to him/her.

4. In case the employee is not disciplined, the employer shall pay the full wage for the period of work suspension.

Section 2. MATERIAL RESPONSIBILITIES

Article 130. Compensation for damage

1. An employee who causes damage to tools and equipment or the assets of the employer shall pay compensation in accordance with law.

In case due to negligence an employee causes a minor damage valued at no more than 10 months’ regional minimum wage announced by the Government and applied at the employee’s workplace, the employee shall pay compensation of no more than 3 months’ wage which shall be deducted monthly from his/her wage in accordance with Clause 3, Article 101 of this Code.

2. An employee who loses tools, equipment or assets of the employer or other assets assigned to him/her by the employer, or uses supplies in excess of the permitted norms shall compensate the whole or a part of the damage at the market price; in case a contract of responsibility has been signed, the amount of compensation must comply with such contract; in case the damage is caused by a natural disaster, fire, enemy sabotage, epidemic, calamity or another objective event which is unforeseeable and irremediable and every necessary measure has been taken to full ability, no compensation is required.

Article 131. Principles, order and procedures for compensation

1. Consideration and decision on the levels of compensation must be based on the fault, the actual level of damage, the actual family conditions, personal records and property of the employee concerned.

2. The order, procedures and statute of limitations for compensation comply with Articles 123 and 124 of this Code.

Article 132. Complaints about labor discipline and material responsibilities

An employee who is handled for violation of labor discipline, suspended from work, or required to pay compensation in accordance with the regime of material responsibilities and is not satisfied with the handling decision, may file a complaint with the employer or a competent agency stipulated by law, or request settlement of a labor dispute according to the procedures stipulated by law.