Lawful dismissal process: Steps businesses need to take

A lawful dismissal process is one of the important issues that businesses need to master to avoid legal risks. Applying this process not only protects the rights of workers but also helps businesses maintain a transparent and fair working environment. The article below will detail the steps to carry out legal dismissal according to current regulations.

In what cases is the disciplinary form of dismissal applied?

According to the provisions of Article 124 of the Labor Code 2019, forms of labor discipline include:

• Reprimand.
• Extend the salary increase period to no more than 6 months.
• Dismiss.
• Dismissal.

In particular, dismissal is the highest form of discipline that employers can apply to employees who violate serious labor regulations. Specifically, it is stipulated in Article 125 of the Labor Code 2019 as follows:

• Employees commit acts of theft, embezzlement, gambling, intentionally causing injury, and using drugs at work.
• Employees disclose business secrets, technology, infringe intellectual property rights, cause serious damage or sexually harass in the workplace.
• Employees who reoffend after being disciplined have extended the period of salary increase or demotion, but the discipline has not been removed.
• Employees voluntarily quit their job for 5 days out of 30 days or 20 days out of 365 days without a legitimate reason.

Legitimate reasons include natural disasters, fires, illnesses with medical confirmation, or other reasons according to labor regulations.

Principles when handling labor discipline

The labor disciplinary process must comply with certain principles to ensure fairness and correctness. Some disciplinary principles that businesses need to keep in mind are as follows:

• The employer must have clear evidence of the employee’s violation.
• The representative organization of workers at the facility must participate in the disciplinary process.
• Employees have the right to defend themselves or ask a lawyer or representative organization to defend them; If under 15 years old, there must be a legal representative.
• The entire processing process must be recorded in writing.
• Do not apply multiple disciplinary measures for one violation.
• If an employee commits multiple violations, only the highest form of discipline will be applied.
• Do not take labor disciplinary action against employees in cases such as being on sick leave, being detained, detained, or during special periods (maternity, raising children under 12 months).
• Do not discipline employees when they suffer from mental illness or lose the ability to perceive or control behavior.

CSPL: Article 122 of the Labor Code 2019.

Current legal dismissal process

Dismissal process employees according to Article 70 of Decree 145/2020/ND-CP includes the following steps:

Step 1: Confirm the violation:

• Immediately detect violations: The employer shall make a record of the violation and notify the employee representative organization at the facility and the legal representative of the employee under 15 years old.
• Detecting violations after they occur: The employer collects evidence proving the employee’s fault.

Step 2: Organize a disciplinary meeting:

• Notice of meeting: The employer notifies relevant parties at least 5 days before the meeting about the content, time, location and violation of the employee.
• Conducting the meeting: The disciplinary meeting must have all attendees or those who do not attend must have a reason. Minutes of the meeting must be prepared and signed by participants. If someone does not sign, the reason must be clearly stated in the minutes.

Step 3: Issue a disciplinary decision:

• After the meeting, the competent person issues a decision on labor discipline within the prescribed time.
• This competent person is the person who signs the labor contract or the person designated in the labor regulations.

Step 4: Publicly announce the disciplinary decision:

The disciplinary decision must be sent to the employee, the legal representative of the employee under 15 years old, and the employee representative organization at the facility.

Responsibilities of the parties when terminating the labor contract

The responsibilities of the parties when terminating the labor contract are specifically stipulated in Article 48 of the Labor Code 2019 as follows:

Payment of benefits to each party:

Within 14 working days from the date of termination of the labor contract, both parties (employee and employer) are responsible for fully paying each party’s benefits. The payment period can be extended up to 30 days in the following cases:

• The employer is not the individual who terminates the operation.
• The employer changes structure, technology, or economic reasons.
• Division, separation, consolidation, merger; selling, leasing, converting business types; Transfer of ownership and rights to use assets of the enterprise.
• Due to natural disasters, fires, and dangerous epidemics.

Responsibilities of the employer:

• Complete insurance procedures: The employer must complete the procedure to confirm the time of social insurance and unemployment insurance payment and return the original documents, if kept, of the employee.
• Provide documents: The employer is responsible for providing copies of documents related to the employee’s work history if requested. The cost of copying and sending documents will be borne by the employer.

Consulting services on regulations on dismissal handling for businesses

Handling layoffs properly is an important part of labor management at an enterprise. At Long Phan, we provide customers with the following services:

• Consulting on regulations related to dismissal according to the Labor Code 2019 and guiding decrees and circulars.
• Guide businesses on proper dismissal process to avoid violating the law.
• Consulting on cases where dismissal is allowed, including serious violations of labor discipline.
• Guidance on obligations to pay benefits to employees when fired, including wages, insurance, severance pay, unemployment insurance,…
• Consulting on how to prepare disciplinary notices, minutes of labor disciplinary meetings and related legal procedures.
• Support customers with insurance procedures, information changes, and number of employees at competent agencies.

Frequently asked questions about the legal dismissal process

Below are some questions related to the dismissal process that customers can refer to:

Are businesses required to notify employees in advance of the layoff decision?

Yes, businesses must notify at least 5 days in advance of the disciplinary meeting, including the content, time, location and violation of the employee.

Do employees have the right to appeal the dismissal decision?

Yes, employees have the right to appeal a dismissal decision if they believe that the decision is not in accordance with the law.

In what cases do businesses not have the right to fire workers?

Enterprises are not allowed to fire employees when they are on sick leave, in detention, or during special periods (maternity, raising children under 12 months), or when they have a mental illness or a disease that causes loss of cognitive ability or behavioral control.

What content should be included in the minutes of the meeting to handle labor discipline?

Minutes of the meeting must clearly state the time, location, participants, meeting content, opinions of the parties and conclusions of the meeting.

Do businesses have to pay severance benefits to fired employees?

Depending on the circumstances, if the employee works regularly for 12 months or more, when legally terminating the labor contract, he or she will receive severance pay.

How long is the deadline for paying employee benefits after dismissal?

Within 14 working days from the date of termination of the labor contract, the enterprise must pay all benefits to the employee.

What records do businesses need to keep related to the dismissal process?

Enterprises need to keep records such as violation records, disciplinary meeting notices, meeting minutes, disciplinary decisions and documents related to the payment of benefits to employees.

Can pregnant workers be fired?

Do not fire female employees who are pregnant, on maternity leave, or raising children under 12 months old.

What should be done when an employee does not sign the disciplinary meeting minutes?

When someone does not sign, the reason must be clearly stated in the minutes.

Conclude

Implementing a legal dismissal process helps businesses avoid possible risks and protects the rights of both employees and employers. If you need advice on the dismissal process and issues related to labor law, please contact us via the hotline 0906735386. Long Phan Consulting Company’s experts will support customers to maximize their rights.