Labor Code of Vietnam 2012 - Chapter VIII LABOR DISCIPLINE AND MATERIAL RESPONSIBLITY

Chapter VIII LABOR DISCIPLINE AND MATERIAL RESPONSIBLITY

Chapter VIII

LABOR DISCIPLINE AND MATERIAL RESPONSIBLITY

Section 1. LABOUR DISCIPLINE

Article 118. Labour discipline

Labour discipline is the regulations concerning the compliance with the time, technology, and business and production management in the labour rule.

Article 119. Labour rule

1. The employer who employs from ten (10) or more employees must have the labour rule in writing.

2. The contents of the labour rule must not be contrary to the law on labor and other regulations of the relevant law. The labor rule includes the following essential contents:

a) Working hours and rest time;

b) Order at the workplace;

c) Labor safety and hygiene at the workplace;

d) Protection of assets and business and technology secrets and intellectual property of the employer;

dd) Acts of violation of the labor rule of the employee and the forms of labor discipline and material responsibility

3. Before issuing the labor rule, the employer must consult the representative organization of the labor collective at the grassroots level.

4. The labor rule must be notified to the worker and the main contents must be posted at necessary places within the enterprise.

Article 120. Registration of labor rule

1. The employer must register the labor rule at the state management agency on labor at the provincial level.

2. Within 10 days from the date of promulgation of labor rule, the employer must submit dossier for registration of the labor rule.

3. Within 07 working days after receipt of the dossier for registration of the labor rule, if the labor rule contains the provisions contrary to law, the state management agency on labor at provicial level shall notify and guide the employer to make amendment and supplementation.

Article 121. Dossier for registration of the labor rule

Dossier for registration of the labor rule includes:

1. The written request for registration of the labor rule;

2. The documents of the employer that have provisions relating to the labor discipline  and material responsibilities

3. The minutes of opnions of the representative organization of the labor collective at the grassroots level.

4. The labor rule

Article 122. Effect of the labor rule

The labor rule shall take effect after 15 days from the date the state management agency on labor at provicial level receives the dossier for registration of the labor rule, except for the case prescribed in clause 3, Article 120 of this Code

Article 123. Principles and procedures of labor discipline

1. The labor discipline is regulated as follows:

a) The employer must prove the employee’s fault;

b) There must be the participation of the representative organization of the labor collective at the grassroots level.

c) The employee must be present and has the right to defend himself, request a lawyer or someone to defend. In case of a person under age 18, there must be the participation of parents or the legal representative;

d) The labor discipline must be made in writing.

2. There is no permission to apply various forms of labor discipline for a violation of labor discipline.

3. When an employee at the same time has many acts of violation of the labor discipline, only the highest form of discipline shall apply corresponding to the most serious act of violation.

4. There is no permission for the labor discipline for the employe in the following time

a) Taking leave due to sickness, in convalescence and work leave with the permission of the employer;

b) Being in custodyor detention;

c) Awaiting the results of the competent authority to investigate, verify and conclude for the acts of violations prescribed in Clause 1, Article 126 of this Code;

d) The female employee is pregnant and takes maternity leave; the employee nourishes her child under 12 months old

5. No labor discipline for the employee violating the labor discipline while suffering from the mental illness or another disease that causes the loss of consciousness ability or the loss of his behaviour control

Article 124. Limitation of labor discipline

1. The limitation of labor discipline is up to 06 months from the date the occurrence of violation; in case the act of violation is directly related to the finance, property, disclosure of business and technology secret of the employer, the limitation of the labor discipline is up to 12 months.

2. When the time period is over as specified in points a, b and c, Clause 4 of the Article 123, if the limitation is still valid to discipline the employees, the employer shall conduct the labor discipline immediately, if the limitation expires, it shall be extended for the labor discipline but not exceeding 60 days maximally from the end date of the time period above mentioned.

When the time period specified at Point d, Clause 4 of the Article 123 is over but the limitation of the labor discipline has ended, the limitation shall be extended for the labor discipline but not exceeding 60 days maximally from the end date of the time period above mentioned.

3. The decision on the labor discipline must be issued within the time limit specified in Clause 1 and Clause 2 of this Article.

Article 125. Form of labor discipline

1. Reprimand

2. Prolongation of wage increase within 06 months; dissmissed from office.

3. Dismissal

Article 126. Application of the form of disciplinary dismissal

The form of disciplinary dismissal is applied by the employer in the following cases:

1. The employee has the act of theft, embezzlement, gambling, intentionally causing injury, using drug within the workplace, disclosing the technology and business secrets, intellectual property infringement of the employer, having the act of causing serious damage or threatening to cause extremely serious damage to the property and interests of the employer;

2. The employee is disciplined by the prolongation of salary increase period but still repeating the violation during the time the disciplinary has not been cancelled or disciplined by the dismissal but still repeating the violation.

Recividism is the case the employee repeats the act of violation that was disciplined but the discipline hasnot been deleted as prescribed in the Article 127 of this         Code

3. The employee quits his job willingly totally 05 days in 01 months or 20 days totally in 01 year without any proper reason.

The cases are considered the proper reason including: natural disaster, fire, self and relative falls ill with the certification of the competent medical facility and other cases prescribed in the labor rule.

Article 127. Deletion of discipline and reduce of execution term of labor discipline

1. The employee is reprimanded after 03 months, or is disciplined by the prolongation of salary increase period after 06 months from the date of being handled, if the violation is not repeated, the discipline shall be automatically deleted. In case of labor discipline in the form of dissmissal, after a period of 03 years, if violation of labor discipline is repeated, it shall not be considered recidivism.

2. The employee is disciplined by the prolongation of salary increase period, after having executed half the period, if making progress in discipline execution, he may be considered by the employer for a remission

Article 128. Prohibited regulation upon labor discipline

1. Violating the employee’sbodyor dignity.

2. Applying the form of fine, salary cutting in lieu of labor discipline.

3. Handling the labor discipline for the employee having the act of violation not prescribed in the labor rule.

Article 129. Suspension ofwork

1. The employer has the right to suspend the work of the employee when the violation has complicated circumstances, seeing that if letting the employee continue working, which shall cause the difficulty for the verification. The suspension of the employee's work is done only after consultation with the representative organizations of the labor collective at the grassroots level.

2. The temporary suspension shall not exceed 15 days and not exceeding 90 days in special cases. During the time of work suspension, the employee shall be advanced 50% of the salary before being suspended from work.

Upon the end of work suspension, the employer must get the employee back to work.

3. Where the employee receives the labor discipline, the employee does not have to pay back the salary already advanced.

4. Where the employee does not receive the labor discipline, the employer shall make the salary payment for the period of work suspension

Section 2. MATERIAL RESPONSIBILITY

Article 130. Damage compensation

1. If the employee causes damage to the tools or equipment or has other acts that cause damage to the employer’s property, he shall make a compensation as prescribed by the law

In case the employee does not cause serious damage due to negligence with a value not exceeding the regional minimal salary of 10 month announced by the Government applied at the employee’s workplace, the employee shall make a compensation of 03 months' salary at most and be deducted from the monthly salary as prescribed in Clause 3, Article 101 of this Code.

2. Where the employeeloses the tools, equipment and property of theemployerorother property assigned by theemployerorconsumes the materials overthe permitted norm, he shall be liable for making the compensation of damages partially or entirely accordingto current market price;in case ofa liability contract, heshallmake the compensationunder the liability contract; in caseof natural disasters, fire, enemy-inflictes destruction, epidemics, disasters and occurrence of unforeseeable andunsurmountable objective eventsdespitetaking allnecessary measuresand allowable ability, he shall not make the compensation.

Article 131. Principle and order and procedure for the handling of damage compensation.

1. The consideration and decision on the rate of compensation must be based on the fault, the actual extent of damage and the actualfamilysituation, personal record andproperty ofthe employee.

2. The order, procedure and limitation of the handling of the damage compensation apply in accordance with the Article 123 and 124 of this Code

Article 132. Complaint about labor discipline and material responsibility

The person subject to the handling oflabor discipline, work suspensionor damage compensation underthe material regime,if thinkingunsatisfactory, hemay lodge a complaintwiththeemployer, thecompetentauthoritiesin accordance with regulation of thelaworrequest to settle the labor disputesin the orderprescribedby law.