Kỷ luật sa thải theo pháp luật lao động việt nam tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THANH VINH DISMISSAL UNDER VIETNAMESE LABOR LAW Subject: Economic Law Code: 9.38.01.07 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hà Nội, 2019 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Science instructor: Assoc.Prof.Dr Nguyễn Hữu Chí Reviewer 1: Assoc Prof Dr Nguyen Duc Minh Reviewer 2: Assoc Prof Dr Le Thi Hoai Thu Reviewer 3: Assoc Prof Dr Duong Dang Hue The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2019 The dissertation may be found at: - Vietnam National Library; Graduate Academy of Social Sciences Library INTRODUCTION The need of research topics Dismissal discipline is the most severe form of labor discipline imposed on employees recorded in the Labor Code to protect the compliance with labor discipline, contributing to ensure enterprise’s order and discipline, at the same time, giving workers industrial working style, it is a factor to attract foreign investment capital into Vietnam There are many reasons for employers to apply disciplinary action Firstly, due to the low awareness of labor discipline of workers, the industrial working style is not high, leading to an increasing number of violations of labor discipline at different levels In addition to the cases of dismissal, the law is applied objectively, in many cases, the employer intentionally exploits the unreliable provisions of the law to dismiss the employee The fact also shows that one of the issues that the parties pay attention to when dismissing labor lawsuits at the dispute settlement agency is the settlement of legal consequences of the dispute Although the 2012 Labor Code had some progressive and modern contents related to the dismissal discipline, but up to now, this Code has also revealed inappropriate points, causing difficulties in law enforcement, which greatly affects the legitimate rights and interests of both employees and employers This has also made it difficult for the competent entity in the process of resolving labor disputes on disciplinary effectively In addition, Vietnam has become an official member of the World Trade Organization (WTO) and is also completing negotiations for many new generation free trade agreements, thus setting new obligations in the implementation of international commitments on economy and trade, including labor sector commitments Therefore, the study and assessment of the current provisions of law, selective acquisition of advances in international law and countries around the world to give directions to improve Vietnam's law on Disciplinary disciplinary issues are essential Because of the above reasons, the author has boldly selected the topic "Discipline of dismissal under the Vietnamese Labor law" to research and a PhD thesis in law Chính vậy, việc nghiên cứu, đánh giá quy định pháp luật hành, tiếp thu có chọn lọc tiến pháp luật quốc tế nước giới để đưa định hướng hoàn thiện pháp luật Việt Nam vấn đề xử lý kỷ luật sa thải cần thiết Chính lý trên, tác giả mạnh dạn lựa chọn đề tài “Kỷ luật sa thải theo pháp luật Lao động Việt Nam” để nghiên cứu làm Luận án Tiến sĩ luật học Research purpose and mission 2.1 Research purpose The purpose of the thesis is to become a comprehensive, in-depth, systematic study of theoretical issues on dismissal discipline Based on the theoretical viewpoints studied in countries around the world, the dissertation makes a unified opinion on the mentioned theoretical issues On the basis of these issues, the thesis specifically analyzes the current status of the law on dismissal discipline in accordance with the Vietnamese labor law and the practice of implementing the law through actual cases clarified by the thesis In parallel with analysis and comment, the thesis assesses the good points and shortcomings in the current law provisions as well as the practical implementation of the law on the issue of dismissal discipline By assessing the inadequacies of the current law, the thesis proposes to amend and supplement a number of regulations on disciplining dismissal in Vietnam in a way that is suitable to the development of the labor market in the context of current international and regional integration 2.2 Research mission From the above research purposes, the thesis identifies the following specific research tasks: - Firstly, the study clarifies theoretical issues such as: The concept, characteristics of dismissal discipline, the meaning and legal consequences of the dismissal disciplining for parties in labor relations dynamic; the need to adjust by law and the content of the law governing dismissal discipline, assess the validity of current laws on handling disciplinary dismissal; - Secondly, analyzing the current status of the law on dismissal discipline and current law enforcement practices in Vietnam, showing the disadvantages as well as the shortcomings and irrationalities of the current regulations on Disciplining dismissal needs completion - Thirdly, proposing directions and solutions to improve the law as well as improve the efficiency of implementation of the law on dismissal discipline in Vietnam in the current period of international integration Subjects and scope of the study 3.1 Research subjects The subject of the thesis is the theoretical and practical issues as well as the proposal to improve the law on dismissal discipline Regarding theoretical issues, the thesis invokes, studies international law and the laws of other countries in the world (China, Korea, Thailand, Japan ), compares and collates with the provisions of labor laws and related laws, provisions of international law in ILO conventions, recommendations and labor laws of some countries in the world to make the most general arguments about dismissal discipline Regarding the current situation, the thesis studies the system of Vietnamese legal regulations on conditions, principles, order, procedures, legal consequences of dismissal discipline, the current situation of law provisions, practices applied in Vietnamese enterprises in general and compare with real situations Specifically, the dissertation researches the disciplinary action of employers, which are implemented in the employer unit, thereby evaluating the effectiveness of law enforcement on this issue From the analysis of the current status of the law and implementation practices, the thesis draws assessments and proposes options to improve the law of Vietnam To analyze the research issues, depending on the content and requirements, the thesis references studies on other subjects related to the above contents 3.2 Research scopes Regarding the content, from a legal perspective, the thesis only focuses on researching the theoretical and practical issues on the dismissal discipline under the law as a content of Vietnamese labor law At the same time, the dissertation goes into the study of direct issues to dismissal discipline such as principles, grounds, competence, procedures, statute of limitations, legal consequences There are still a number of related issues such as disputes, complaints, handling of violations in the field of labor related to dismissal discipline, the thesis would mention to a certain extent, because these issues are currently resolving according to the mechanism of dispute resolution in general, so it can be absorbed in other research works or continue to study in other scientific works In terms of space and time, the thesis has focused on researching the content of legislation adjustment on dismissal discipline in the social – economy context of Vietnam, since the Labor Code 2012 took effect from May 1, 2013 so far Methodology and research methods The work was carried out on the basis of applying the dialectical materialism and historical materialism of Marxism-Leninism, Ho Chi Minh ideology, and the views and guidelines of the Party and the State, the spirit of judicial reform so that we can fully exploit the nature of the discipline of dismissal discipline in a comprehensive and thorough manner Besides, the thesis also uses a variety and combination of traditional and highly reliable research methods such as: Analysis, synthesis, comment, statistics, history and comparisons of jurisprudence New scientific contributions of the thesis As a scientific research systematically and comprehensively about dismissal discipline, the thesis has the following major new contributions: Firstly, the thesis refreshes the concepts in order to consistently interpret dismissal discipline At the same time, the thesis also clarifies the characteristics and meaning of dismissal discipline, thereby seeing the need for further research on this issue The thesis contributes to building a theoretical system of labor discipline in general, dismissal discipline in particular and the adjustment of other laws, contributing to the academic enrichment of labor law science Secondly, the thesis has generalized the contents of the law on disciplinary dismissal and systematically analyzed these contents on the basis of ILO regulations and the laws of countries around the world Thereby, the thesis explained the concept and the role of the law on dismissal discipline for the state management mechanism in the field of labor of the market economy, on the production and business process of employers and jobs, income of employees Thirdly, the thesis has analyzed, assessed in a relatively complete and comprehensive manner the status of the law on disciplinary dismissal in Vietnam, including the principles, grounds, authority, order and procedures, disciplinary procedures for dismissal and evaluated the legal consequences of dismissal and disciplinary dismissal disciplines, in which the thesis has studies on dismissal discipline related to civil and administrative sectors From the legal assessments, the thesis presents and analyzes the situation of law enforcement and violations in dismissal discipline in recent years, especially the actual cases of disciplinary handling unlawful dismissal laws and practice of settling dismissal disputes of the People's Courts; thereby identifying a number of other features of law violations in this area; causes and conditions of such violations, and the handling measures of competent agencies to settle violations and disputes related to dismissal discipline Fourthly, the thesis explained the requirements to improve the law on dismissal discipline in Vietnam with the direction of ensuring the interests of the parties (the state, employers, employees) and in accordance with international law as well as the market economy conditions in the current context of integration in Vietnam The dissertation proposed amending and supplementing a number of regulations of the Labor Code 2012 on the dismissal discipline in order to improve the regulations of the Labor Code and improve the effectiveness of law enforcement on this issue in Vietnam employing units The thesis offers specific solutions to ensure the legitimate rights and interests of employees and employers when terminating labor relations, ensuring the feasibility of the law provisions on dismissal discipline, ensure the consistency of the legal provisions on disciplinary dismissal in relation to related issues and ensure the compatibility of Vietnam's legal provisions on dismissal discipline with International law and international labor standards Besides, through analyzing the current legal regulations and surveying the enforcement of laws on the discipline of dismissal in Vietnam has not been well implemented, it is necessary to supplement and amend the regulations on the employer's disciplinary dismissal rights, legal consequences of disciplinary dismissal, and resolution of disputes that have occurred in practice Scientific and practical significance of the thesis In terms of theory, the thesis contributes to strengthening and completing the theoretical basis and legal provisions on disciplinary dismissal under Vietnamese law so that legislators, competent agencies, research officials, employers and employees refer to and apply in the process of implementing, resolving disputes or building and perfecting the law on handling disciplinary dismissal In practical terms, the thesis contributes to further improving the effectiveness of the implementation of the law on disciplining of dismissed parties in labor relations, as well as the management efficiency of state management agencies labour At the same time, the research results of the thesis can be used as a useful reference for the study and teaching of labor law major in law training schools or used in real work of the Court, Labor, Invalids and Social Affairs to address specific cases related to dismissal discipline in Vietnam The structure of the thesis In addition to the introduction, conclusion, list of references, the thesis is structured chapters: Chapter 1: Overview of research topic Chapter 2: Theoretical issues on dismissal discipline and adjustment of labor law Chapter 3: Current status of current laws on disciplinary dismissal and current practice in Vietnam Chapter 4: Completing the law and improving the effectiveness of current law on dismissal discipline in Vietnam CHAPTER OVERVIEW OF RESEARCH TOPIC 1.1 Research situation interior and international 1.1.1 Research situation interior a Books and textbooks The documents are the Labor Law curriculum and lectures of the universities that write on the issue of labor discipline Those are textbooks such as: “Labor Law syllabus” of Ho Chi Minh City University of Law, Ho Chi Minh City National University Publisher, was published in 2011 by Assoc Prof Tran Hoang Hai, Editor; "Textbook of Labor Law" by Hanoi Law University, People's Police Publisher released in 2008 edited by author Luu Binh Nhuong; "Textbook of Labor Law" of University of Labor - Society by Publishing House Labor - Society, published in 2009; "Vietnam Labor Law Curriculum" by Hanoi National University (1999), edited by author Pham Cong Tru, Ha Noi national university Publisher These documents provided the concepts of labor contracts, some basic characteristics of labor contracts and current regulations on labor discipline in labor contract regulations Because disciplinary action is just a legal act of a party in the labor relations, the above documents not go into specific analysis on theories and formation history legal adjustment on this matter in practice b Thesis, dissertation, scientific project - Nguyen Viet Cuong (2001), head of the project "Practicing settlement of all types of lawsuits on unilaterally terminating labor contracts, dismissal discipline in the past and recommendations" of the Supreme People's Court This thesis studies practical practices for dealing with two types of work related to labor rights of employers It is the right to unilaterally terminate the labor contract and the right to disciplining the employee In this study, the author has not mentioned the shortcomings as well as the shortcomings and irrationalities of the current regulations on labor discipline - Tran Thi Thuy Lam (2007) with the research topic "The law on labor discipline in Vietnam - the situation and the direction of completion" The study clarifies fundamental theoretical issues on labor discipline in Vietnam Studying the direct contents of labor discipline such as labor regulations, liability applicable to violations of discipline Actual situation of labor discipline law in accordance with the Labor Code in 1994 and amended and supplemented in 2002, 2006, 2007 Proposing directions and solutions to improve the law on labor discipline appropriately with labor management mechanism in the current period However, in this study, the author did not mention some issues such as dispute resolution, complaints, handling of violations in the field of labor discipline - Tran Thi Thuy Lam (2010) head of the project "Research to contribute to the amendment and supplement of the Labor Code in the current period" of Hanoi Law University In the project, there are three topics: evaluation of labor contract regulations, evaluation of collective labor agreement and assessment of labor discipline, material responsibility relating to employers' right to labor rights Although there are many new special points that contribute to the improvement of our labor law, the author has not yet come up with effective solutions to resolve disputes and complaints in the process of handling labor discipline - Hoang Thi Anh Van (2014) with the topic "Labor discipline under the current Vietnamese law and the direction of completion" The thesis systematically generalizes the basic theoretical issues of labor discipline as well as the labor discipline law in Vietnam to highlight the legal mechanism governing labor discipline in our country Researching and assessing the enforcement of labor discipline laws in Vietnam Based on the analysis and evaluation of current regulations on labor discipline, the thesis provides an overview of the current law on labor discipline in Vietnam Making specific comments on the pros and cons of Vietnamese law on labor discipline On the basis of inadequacies, limitations, shortcomings, the thesis boldly proposed specific solutions to further improve the law on labor discipline, as well as solutions to improve real effectiveness There are currently laws on labor discipline in our country in the current period However, the thesis only researches mainly on issues of labor regulations, handling of violations and the application of the law on labor discipline in employers without intensive research disputes and complaints in the process of labor discipline in accordance with Vietnamese law - Do Thi Dung (2014) with the topic "Laws on labor management rights of employers in Vietnam" The dissertation studying the labor management rights of employers is carried out in employers under the provisions of the Labor Code 2012 and its guiding documents Accordingly, the content of the law on labor management rights of employers in units shall include: (1) The right to set up labor management tools; (2) Right to organize and implement labor management Similar to some previous studies, the thesis has not clarified the issue of labor management rights of other entities such as labor management rights of the state, labor management rights of organizations and unions in the application employer Other rights that are not the right of the employer to manage labor, such as the right to dialogue at the workplace, the right to collective bargaining, the right to participate in representative organizations, the right to lodge complaints, denunciations, and the right to initiate lawsuits, the right to participate in labor dispute resolution, the right to request strike settlement Other relevant issues such as: sanctioning of violations, resolving disputes in the field of labor management rights of users labour Issues related to disputes, complaints and disciplinary actions have not been studied in depth by the author but only introduced in general manner c Magazine article - Do Ngan Binh (2001) with the article "Some recommendations to amend labor discipline regulations" published in the Journal of Labor and Social Affairs (October 2001) limited The dismissal is also a way to protect the rights of employers Disciplined grounds for dismissal also show this * Grounds for handling dismissal discipline as prescribed by law Unlike other forms of disciplinary action, the basis for disciplining dismissed is clearly stipulated by law As analyzed, the dismissal discipline has the biggest consequence of terminating the labor contract and affecting both parties of the relationship, so that the employer can only implement and discipline the dismissal when but the employee's behavior reaches a level of serious or particularly serious fault With this perspective, current laws stipulate listing-oriented behaviors including major groups such as: - Group of acts causing damage to the employer’s assets: For acts such as: employees stealing, embezzling, gambling, intentionally causing injuries, using drugs within the workplace, revealing business secrets, technological secrets, infringing intellectual property rights of the employer, the act of causing serious injury or threatening to cause particularly serious damage to the property and interests of the employer Looking at it, we can see that these bases have a serious or particularly serious impact on the units' production and business Therefore, the law stipulates that employers have the right to terminate the labor contract with employees to perform such acts - Group of acts of recidivism: This group includes acts of repeating the conduct that the employee was disciplined earlier while the discipline was not removed When an employee is disciplined, there will be a time limit to consider removing the discipline for that employee This period is considered to be the period of time when the employee corrects his or her defects and proves that it no longer affects the production and business activities of the employer unit However, with the aforementioned basis, within the time of being considered, the employee repeats the same completely similar behavior, which shows that the employee's awareness and bad working attitude An action that may only correspond to lighter penalties such as an extension of the pay rise period, demotion, but it is repeated many times, the severity will be higher and thus, the law allows the employer to dismiss the employee in this case 11 - Group of acts of arbitrarily quitting a job without plausible reasons: The purpose of the employer establishing a labor planning is to achieve the efficiency of the production and business process To achieve this goal, it is indispensable for an employee to fulfill his / her job duties, so when an employee quit his / her job voluntarily, this affects the overall purpose However, it is not possible just because of arbitrarily quitting a job to arbitrarily dismiss an employee In accordance with the meaning of the labor discipline, the dismissal of an employee voluntarily quit a job must also be based on the number of days that person has taken leave and what their reason is The number of days of employees' leave in a certain period of time indicates the employee's sense of work and the ability of such acts to affect production and business activities The reason for quitting the job is considered in the grounds of social meaning as well as the objectivity of the problem For example, if an employee cannot work at work due to illness, it cannot be considered an employee's fault Orientation law regulates the issue of "arbitrary quitting" of employees to assess work consciousness, responsibility for work and willpower of employees to treat it as a basis for applying disciplinary measures fired, exercised management rights of the employer * Discipline dismissal is conducted in order and procedures and quite complicated With the nature of being a disciplinary measure, the application of disciplinary measures for dismissing employees must also follow the order and procedures for handling labor force in general Disciplinary procedures by steps that employers must follow when disciplining workers When disciplining a worker is dismissed, the employer must follow the same steps as when handling the labor rule in general and must follow separate rules when conducting the dismissal The order and procedures for disciplining up to now have been very strict regulations and especially the dismissal is more and more interested, because because of the disciplinary punishment, the consequences not just stop at workers' mental and income losses that greatly affect their employees and their families When the employer disciplines the employee in the form of dismissal, the labor union will terminate Employees will lose all income generated on the basis of labor contracts Not only that, the disciplined dismissal also affects the employees' ability to find jobs in the future due to 12 their honor and reputation The purpose of the order and procedures is quite complicated, stemming from the consequences of dismissal, in order to prevent the employer from dismissing the worker arbitrarily and at the same time protecting the legitimate rights of the employee The elaboration of complicated order and procedures also aims to ensure the proper dismissal and disciplining of the employer, avoiding the abuse of the employer rights At the same time, it also ensures employees know what they were fired for and they have the opportunity to justify their actions However, only some countries regulate this issue, others not stipulate because they think it is the right of the employer, so the law does not interfere In accordance with the general order and procedures of the labor discipline in general, the handling of a labor discipline must always ensure such factors as written notice to the parties including the employee and the whole organization protecting the rights of employees union action; for employees under 18 years of age, their parents or their legal representative must be notified; make meeting minutes, approve, sign all members, make decisions, send decisions If the employer fails to perform any steps in the prescribed order and procedures, it will be the basis for determining unlawful dismissal 2.1.2 The role of disciplinary dismissal Firstly, for employers It can be said that the dismissal discipline has promoted employers to invest, expand production and business to create jobs and income, especially when Vietnam is integrating deeply into the world economy In the context of the current market economy, the development of production and business, the labor relations between employees and employers also have many changes Employees who work, receive wages and certain regimes must also comply with the labor discipline regulations recorded in the legal documents as well as in the labor regulations of enterprises The employer has the right to manage labor to ensure orderly order according to the rules of the business to direct each person's activities to the implementation of the common plan and to create the common results Second, for workers 13 Dismissal discipline has a positive impact on employees' consciousness so that they can be more serious in implementing labor contracts By giving the employer the right to discipline the dismissal, the employer will contribute greatly to the awareness of the employees when participating in the labor planning, promoting them to constantly work, preserve discipline and improve their skills, building a stable, long-term, mutually beneficial labor contract, ensuring that employees' actions not go against the common interests of the society, not contrary to the general development trend of labor relations Thirdly, for the State and society The dismissal discipline contributes to improving the efficiency of the labor organization and on that basis, constantly improving the lives of employees Disciplining dismissal ensures the process of labor organization is tight and sustainable Without discipline of dismissal, it will be difficult to organize labor in a way that suits production requirements, cannot manage large production, achieve high qualifications and industrial manners The dismissal discipline also contributes to regulating, creating an appropriate and harmonious and stable working environment, on the basis of which stabilizes the general order of the whole society The correct application of the legal provisions on disciplinary dismissal will also create a sense of good compliance with the State's regulations as well as the general social order, helping the society to develop in a harmonious and stable manner 2.1.3 Compare dismissal discipline with forced dismissal and termination of employment contracts Dismissal is the most serious discipline that employers apply to employees who violate labor discipline Disciplinary dismissal aims to eliminate from the working environment the employees who seriously violate the business order Therefore, when fired, the employee will not be able to participate in the labor relationship with that employer, the labor relationship between the two parties will automatically terminate Dismissal means that the employee is terminated the labor contract However, this is only unilateral termination of the contract from the employer for the employee who has committed a disciplinary violation 14 2.2 Some theoretical issues about the law on dismissal discipline 2.2.1 Definition and role of dismissal discipline 2.2.1.1 Legal concept of dismissal discipline In most countries in the world, the application of labor discipline in general and dismissal in particular is regarded as the right of the employer and compliance with discipline is the duty of the employee However, in different countries, depending on the socio-economic conditions and customs of each country, the law can be adjusted to different degrees It is possible to define the law on dismissal discipline as a combination of the provisions of the law governing the application of labor discipline by the employer to the employee 2.2.1.2 The role of the law on dismissal discipline Dismissal disciplinary law provides the legal background for dismissal discipline An important part of international labor law that provides the basic conditions for the formation and development of dismissal disciplines are the rules on disciplinary action and dismissal discipline, dismissal disciplinary procedures, competence to handle dismissal discipline and legal consequences of unlawful dismissal discipline, thereby helping to identify the dismissal discipline unlawful, legal consequences and the regulation of the law to restrict unlawful dismissal discipline Besides, the labor discipline law provides a legal limit to guide the parties to solve the issues of dismissal discipline In fact, there are always many cases where the employer abuses his / her labor management rights or the employer takes advantage of the law to implement the unlawful dismissal discipline The dismissal disciplinary law both regulates the issues of dismissal discipline and limits this activity so that the parties can strictly enforce the dismissal discipline 2.2.2 Legal content on dismissal discipline 2.2.2.1 Principles for handling disciplinary dismissal under the law Similar with the application of any other form of discipline, when it is likely to affect the rights and interests of a subject matter, the application should follow certain principles With this perspective, the labor law has specific rules required when employers use disciplinary measures to dismiss them The above disciplined disciplines aim to protect the rights of employees 15 and maintain the meaning of the labor discipline in general, dismissal discipline comply education discipline of employees in particular An employer who violates any of these rules will be treated as unlawful disciplinary action 2.2.2.2 Grounds to apply disciplinary action according to law Dismissal is the most serious form of disciplinary action, leaving the most serious consequences for employees Therefore, to ensure the rights of employees, to limit labor disputes, the labor law strictly stipulates the grounds for disciplining dismissal In the world, there are countries that specify the dismissal cases but there are countries that only stipulate in principle and the specific cases will be stipulated by the employer 2.2.2.3 Jurisdiction to discipline dismissed under the law In a labor relation, the authority to impose disciplinary action is given to the employer The process of management and administration of labor activities plays an extremely important role in the production and business activities of employers Therefore, regulation on the right to discipline will help employers to exercise this right to better management of labor 2.2.2.4 Order and procedures for disciplining dismissed in accordance with law In fact, when disciplining dismissed employees, employers need to comply with the provisions of the law It can be understood that, in addition to complying with the provisions of the content, employer must also comply with the formal provisions, the formal requirements are the provisions on the order and procedures for disciplinary action 2.2.2.5 The statute of limitations for handling disciplinary dismissal under law The limitation period for disciplining dismissed is the period of time when the employer is allowed to conduct the disciplinary action for dismissal of an employee who violates the labor code as prescribed by the law and is specified in the labor regulations by the employer Upon expiry of this period, the employer is not allowed to discipline the dismissal of the employee If the employer still issues the disciplinary decision on dismissing the employee, this will be an unlawful decision 2.2.2.6 The legal consequences of disciplinary dismissal of workers 16 Firstly, the case where the employer dismissed the employee legally In this case, the employee actually committed violations of labor discipline and labor regulations of the prescribed unit; The disciplinary procedures of employers are also in compliance with the law Thus, the employee has affected the production and business activities of the employer and made it impossible for the labor relation to continue, so normally, the employee will not receive any support from the employer Secondly, the case of the employer dismissed the employee illegally If the dismissal is deemed unlawful, the employer must restore the employee's rights and interests violated by the employer 'disciplinary decision Given the serious nature of this form, its legal consequences are stipulated in detail, in the highest legal document on labor 2.2.2.7 Dispute settlement dismissed disciplined according to law Settlement of labor union in the case of dismissed employee is an activity that resolves disputes and conflicts between employee and employer when the employee is fired based on the provisions of law to achieve the desired benefits of parties By resolving the Labor Confederation in the event that the employee is fired, the competent individuals and agencies will restore the damaged rights and legitimate interests, erase the conflict and disagreement between the disputing parties to maintain and promote labor relations, ensure stability in the production process CHAPTER CURRENT STATUS OF LEGISLATION ON HANDLING DIMISSAL DISCIPLINE AND PRACTICE OF IMPLEMENTATION IN VIETNAM 3.1 Dimissal discipline principles Dimissal discipline princiles are stated in Article 123 of Labor code 2012: First, the employer shall prove the fault of the employee; Second, the representative organization of the grassroots-level employees’ collective must participate in the handling; Third, 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 17 years old, his/her parent or at-law representative must participate in the handling; Fourth, the handling of the violation of labor discipline must be recorded in the minutes Fifth, it is prohibited to impose more than one form of discipline for a single violation of labor discipline 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 Sixth, labor discipline may not be imposed for violations committed by an employee who is currently: Taking sickness or convalescence leave or a leave with the employer’s consent; kept in custody or temporary detention; waiting for results of verification and conclusion of a competent agency for acts of violation specified in Clause 1, Article 126 of this Code; a female employee and pregnant or on maternity leave; rearing a child under 12 months of age Seventh, 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 In addition to the above principles, Article 128 of the 2012 Labor Code also has a prohibition policy when handling violations of labor discipline: First, infringing upon the body or dignity of the employee Second, applying a fine or wage reduction instead of a disciplinary measure Third, disciplining an employee who has committed a violation which is not defined in the internal working regulations 3.2 Grounds for apply dismissal discipline First, employees have acts of theft, embezzlement, gambling, intentionally causing injuries, drug use within the workplace, revealing business secrets, technological secrets, and infringing upon property rights intellect of the employer, committing an act that causes serious damage or threatens to cause particularly serious damage to an employer 's property and interests 18 Secondly, the employee is disciplined by extending the wage increase period but recidivism during the time which discipline still not be removed or the disciplinary measure is dismissed but the employee is recidivist Thirdly, the employee arbitrarily quit his / her 05 cumulative days in 01 month or 20 cumulative days in 01 year without good reason 3.3 Jurisdiction on handling disciplinary dismissal Currently, disciplinary action of dismissal due to legal provisions is the right of the employer However, the employer in this case also needs to be clarified Accordingly, based on Clause 12 Article of Decree 148/2018 / NDCP amending Article 30 of Decree 05/2015 / ND-CP, the person concluding employment contracts on the employer side is persons competent to issue labor discipline decisions against laborers The person concluding the employment contract on the employer side is specified in Clause Article of Decree 148/2018 / ND-CP amending Clause Article of Decree 05/2015 / ND-CP With that provision, it is understood that the person competent to issue dismissal decisions includes the legal representative as prescribed in the charter of the enterprise or cooperative; the heads of agencies, units and organizations according to the provisions of law; persons authorized by members of households, cooperative groups or other organizations without legal person status to act as representatives according to the provisions of law; individuals directly employing laborers and persons authorized in writing by heads of agencies, units or organizations to conclude labor contracts 3.4 Order and procedures for application of disciplinary action When employer conduct a dismissal discipline, all employers must comply with the law on order and procedures The current Vietnamese labor law prescribes the order and procedures for the labor discipline in general and the dismissal discipline in particular in Article 123 Labor Code 2012; Specific guidance is provided in Clause 12, Article of Decree 148/2018 / ND-CP amending Article 30 of Decree 05/2015 / ND-CP and Article 12 of Circular 47/2015 / TT-BLDTBXH 3.5 The prescription for disciplinary action for dismissal According to Clause 1, Article 124 of the 2012 Labor Code, “ The statute of limitations for handling a violation of labor discipline is months from the date the violation is committed The statute of limitations for handling 19 a violation of labor discipline directly related to finance and assets or disclosure of technological or business secrets is 12 months ” The 2012 Labor Code also stipulates that the limitation on the handling of the Labor Code can be extended when the employee falls into one of the following cases (Clause 2, Article 124, 2012 Labor Code; Clause 4, Article 123, 2012 Labor Code): The employee takes sick leave and takes care of; resignation with the consent of the employer; or is being held in custody or temporary detention; awaiting the results of the competent authorities to investigate, verify and conclude for violations specified in Clause 1, Article 126 of the 2012 Labor Code; female employees are pregnant, take maternity leave; Employees raising children under 12 months old 3.6 Legal consequences of dismissal discipline 3.6.1 Legal consequences of disciplinary dismissal in accordance with the law According to Clause 8, Article 36 of the 2012 Labor Code, a disciplined employee is one of the cases that terminates the labor contract When the dismissal is done in accordance with the principles, grounds, authority, order, procedures and statute of limitations, this dismissal is lawful When dismissing an employee in accordance with the law, the employer must fulfill the responsibilities specified in Article 47 of the 2012 Labor Code 3.6.2 Legal consequences of illegal dismissal discipline When the dismissal is finished in accordance with the principles, grounds, authority, order, procedure and prescription, this dismissal will be lawful The dismissal if violating one of the above regulations will be determined as unlawful Legal consequences of illegal disciplinary dismissal include: a Civil liability b Administrative responsibility c Criminal responsibility 3.7 Dispute settlement disciplined dismissal Regarding the dispute on disciplinary dismissal in Article 132 of Labor Code 2012 stipulates: “ 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 20 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 " As such, employees who feel fired illegally can send a complaint to the Labor Inspectorate or the grassroots trade union executive committee for settlement or send an application to the competent agencies or individual who have authority to handle labor dispute which are labor mediator or People’s Court (According to Article 200 of the 2012 Labor Code) The order and procedures for conciliation of a dispute on disciplinary action of a labor mediator are specified in Article 201 of the 2012 Labor Code; Decree No 46/2013 / ND-CP dated May 10, 2013 of the Government detailing the implementation of a number of articles of the Labor Code on labor disputes; Article of Circular No 08/2013 / TT-BLDTBXH dated June 10, 2013 guiding the Government's Decree 46/2013 / ND-CP of May 10, 2013 detailing the implementation of a number of articles of the Labor Code on competition mortgage labor 3.8 A number of comments and assessments on the practice of dismissal disciplinary in Vietnam today 3.8.1 Achievements 3.8.2 Problems and inadequacies CHAPTER IMPLEMENTING THE LAW AND IMPROVING THE EFFICIENCY OF IMPLEMENTING THE LAW ON DIMISSAL DISCIPLINE IN VIETNAM 4.1 Request to improve Vietnamese labor law on dismissal discipline 4.1.1 Ensuring the legitimate rights and interests of employees and employers when applying dismissal discipline 4.1.2 Ensuring the feasibility of the provisions of the law on dismissal discipline 4.1.3 Ensuring the consistency of the legal provisions on disciplinary dismissal in connection with the provisions of the relevant laws 21 4.1.4 Ensuring the compatibility of Vietnamese law provisions on dismissal discipline with international law and international labor standards 4.2 A number of solutions to perfect Vietnamese law on dismissal discipline 4.2.1 Complete the provisions of Vietnamese law on dismissal discipline 4.2.1.1 Grounds of handling dismissal discipline The 2012 Labor Code has made many reasonable additions regarding the dismissal disciplinary basis, but the current legal documents not have clear guidelines lead to improper and inconsistent application in real life Currently, the provisions of the Criminal Law may be consulted to amend the definition of recidivism in the direction of recidivism: that an employee commits an act of serious violation equivalent to the seriousness of the previous discipline that has not been removed 4.2.1.2 Order and procedures for disciplining dismissed In many seminars on current labor law amendments, most employers have their ideas about the order and procedures for dealing with fired labor force Some issues need to be improved can be listed as follows: - Order and procedures for disciplining dismissed - Participants in the dismissal disciplinary meeting - Statute of limitations for disciplining dismissed 4.2.1.3 Prohibitions when handling labor discipline 4.2.1.4 Issues related to labor regulations In fact, many operating enterprises have not yet developed or registered labor regulations in accordance with the law This leads to the question of whether it is possible to dismiss employees when they commit violations against discipline affecting the production and business activities of enterprises If the employer does not have a labor rule, the employer cannot apply the disciplinary action against the employee 4.2.1.5 Disciplinary dismissal in case of labor subleasing 4.2.1.6 Settling dismissal disputes 22 4.2.2 A number of solutions to improve the efficiency of handling disciplinary actions in accordance with Vietnamese law 4.2.2.1 Strengthen the propagation and education of labor legislation in general and the law on handling disciplinary dismissal in particular 4.2.2.2 Enhance the role of Trade Union in disciplining dismissal 4.2.2.3 Promote inspection, examination and handling of law violations in dismissal disciplining 4.2.2.4 Improve the effectiveness of law enforcement on dismissal discipline in the era of industrial revolution 4.0 4.2.2.5 Improve the effectiveness of handling dismissal disputes CONCLUSION Dismissal is the most serious form of labor discipline but necessary to ensure the order and discipline of the business This is employer’s right but this right must be placed in a strict and specific regulation of the law The dismissal of labor discipline is one of the forms of handling the labor discipline, which plays an important role in the production and business activities of the employer and the society This is the most serious form of labor discipline, which not only has many adverse consequences for the employee but can also affect the employee's family if the employee is the main income earner of the family Therefore, the labor law provides very specific principles and grounds for disciplining the dismissal of employees When the employer wants to discipline the dismissal, they must fully comply with the provisions of the law on the principles, grounds, order and procedures to handle dismissed discipline If the employer violates one of these regulations, the disciplinary decision will be contrary to the law and incur certain legal consequences The legal provisions on disciplinary dismissal are generally gradually grasped and applied by employers and employees to protect their legal rights and interests In addition, there are still many cases where the employer has not strictly followed the provisions of law, affecting the legitimate rights and interests of employees, resulting in many actual labor disputes Studying theoretical issues and the situation of disciplinary dismissal, the dissertation has made a number of recommendations to perfect the dismissal institution in the current labor law and improve the application of the law in real life 23 The dismissal disciplinary law should be specifically improved the dismissal grounds, simplify procedures, and have a clear distinction on the legal consequences of each dismissal case Ensuring the management rights of employers and employees are protected when participating in the labor relation Having appropriate labor discipline regulations will firmly hold a firm line in the enterprise, giving employees a good sense of discipline and training in industrial manners, creating favorable conditions for production and business to develop, accelerate the industrialization and modernization of the country and international economic integration With serious investment and research, the author expects that the thesis will contribute a small part to perfecting the legal provisions on disciplinary dismissal in the process of developing, amending and supplementing the interministerial regulations In this regard, as well as the interest of further research related to the issue of disciplinary dismissal in labor law 24 25 ... nghiên cứu, đánh giá quy định pháp luật hành, tiếp thu có chọn lọc tiến pháp luật quốc tế nước giới để đưa định hướng hoàn thiện pháp luật Việt Nam vấn đề xử lý kỷ luật sa thải cần thiết Chính lý trên,... thiết Chính lý trên, tác giả mạnh dạn lựa chọn đề tài Kỷ luật sa thải theo pháp luật Lao động Việt Nam để nghiên cứu làm Luận án Tiến sĩ luật học Research purpose and mission 2.1 Research purpose... study of theoretical issues on dismissal discipline Based on the theoretical viewpoints studied in countries around the world, the dissertation makes a unified opinion on the mentioned theoretical