Dismissal is the most severe form of discipline imposed by the employer on an employee who commits a serious violation of discipline. This is a form of discipline applied by the employer to the employee by unilaterally terminating the labor contract, forcing the employee to leave the job regardless of the validity of the labor contract. So the decision to dismiss legally wants to comply fully with what conditions?

Below are instructions on how to legally dismiss employees. Dismissal is the immediate termination of a labor contract. The company does not need to make a severance payment or give notice.

1. Cases of application of dismissal discipline

An employee can be dismissed if:

• The employee commits theft, embezzlement or an intentional act of violence, gambles or uses drugs at the workplace, or discloses secret company information.
• The employee has been absent for 5 days during a month, or twenty days during the year, without a plausible reason. Plausible reasons include illness, fire, natural disaster, the death of a relative,
• An employee previously convicted of a crime recommits that crime.

2. The process of firing employees legally

Companies wishing to take disciplinary action to dismiss lawfully shall do the following:

Step 1: Confirm the violation

When an employee is detected to have committed a labor discipline violation at the time of the violation, the employer shall make a record of the violation and notify the trade union organization; father, mother or legal representative if the employee is a person under 18 years of age.

Step 2: Hold a meeting to handle labor discipline

Enterprises organize meetings for disciplining in the following order:

•  Present evidence to prove employees faults;
•  The meeting must be attended by a representative organization of the labor collective at the company;
•  Employees must also be present and entitled to defend themselves, by a lawyer or by other people to defend.
•  Disciplining in the form of dismissal must be made in a minute with all signatures of the participants.

Step 3: Issue a disciplinary decision

In order to make a decision on the labor discipline legally, it must be issued by a competent person and on time.

Issuing time: Within 06 months, counting from the date the violation occurs; If it is an act directly related to finance, property, business secrets or technology, it is 12 months.

Step 4: Publicly announce disciplinary decisions 

Disciplinary decisions must be sent to employees, parents, or legal representatives of workers under 18 and organizations representing labor collectives.

Step 5: Pay salaries and return insurance payment to employees

The dismissed employee will still be paid the salary for the working days and return the insurance book as in the case of other contract termination. Whereby:

- Within 07 working days from the date of termination of the contract, the enterprise must make full payment related to employee rights, including wages for working days; in special cases may last but not more than 30 days.

3. Statute of limitations for disciplinary dismissal

The statute of limitations for handling a labor discipline is the time the employer is entitled to discipline the employee. Upon expiry of this period, the employee shall not be entitled to handle the discipline. According to current regulations, the statute of limitations for handling a dismissal discipline is 06 months from the date the act of violation is committed. If you do business, this period is 12 months.

When the statute of limitations is disciplined, the employer is not able to perform the discipline for the following reasons:

• The employee is on sick leave or convalescence leave;
• Quitting the work with the consent of the employer;
• Being held in custody or temporary detention;
• Awaiting results of the competent authority to investigate and verify and conclude for violations; then the time limit for disciplinary action will be extended for a maximum of 60 days from the date these events cease.

4. Cases must not dismiss employees

The employer must not take reasons for female employees to get married, pregnant, take maternity leave, raise children under 12 months of age to let employees leave their jobs and must not punish dismissed employees. For employees who are in the following time:

• Sick and convalescence leave; resignation with the consent of the employer;
• Being held in custody or temporary detention;
• Awaiting results of a competent authority to investigate and verify conclusions on acts of theft, embezzlement, gambling, intentionally causing injury, drug use within the workplace, revealing secrets business secrets, technological secrets, infringements of intellectual property rights of employers, acts of causing serious damage or threatening to cause particularly serious damage to users properties and interests. labor;
• Female employees are pregnant, taking maternity leave or raising children under 12 months of age.

On the employee side, if the employee feels unreasonably fired and finds that the dismissal is against the law, the employee may:

•  Complain to the employer, request to cancel the dismissal decision.
•  If the above way still does not solve, the employee can apply to the Department of Labor-Invalids and Social  Affairs.
•  Initiate a lawsuit to the District Court where the employer is located.
• Denouncing police authorities in accordance with Article 162 of the 2015 Penal Code on Crime of forcing civil servants and officials to quit their jobs or dismiss workers illegally.

In cases where the enterprise has been illegally fired or the employee has been laid off for a reason not in accordance with the law, it is extremely important to reclaim the right. Apolo Lawyers is a reliable law firm with the broad experience handling in this expertise, we believe to provide the client with a smooth process to resolve disputes in the shortest time.

More information can be found on the website: www.apolo.com.vn

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