Vietnam – Disputes Over Applying Dismissal For Disciplinary Reasons – Perspectives From The Dispute In Practice.

The Judgment No. 02/2018/LD-PT of the Ba Ria – Vung Tau People'’s Court on the dispute over applying dismissal for disciplinary reasons has the following main contents:

• Ms. H works at Company X under an indefinite-term labor contract No. 00415/2014;

• According to Company X’s regulations, when an employee needs to take leave, he/she must fill out the information and sign the leave application and then submit it to the direct supervisor for approval before leaving;

• Ms. H applied for leave from 26 September, 2015 to 2 October, 2015 and confirmed that she had made an application for leave signed by her supervisor, Mr. Steve C. Ms. H then handed this application over to her direct staff, Ms. L, who transferred the leave application to the Human Resources Department (the ““HR””) of Company X, but if Ms. L submitted it or not, Ms. H did not know;

• On 4 March, 2016, Company X issued the disciplinary decision No. 00415-HR/2016 dismissing Ms. H from 4 March, 2016 (““Decision 00415-HR/2016””), with the reason that Ms. H failed to go to work for a total period of 05 days in 30 days without acceptable excuses;

• Ms. H supposed that the disciplinary procedures applying dismissal against Ms. H without her department meeting minutes does not comply with Article 29 of Company X’sthe internal labor regulations ("“ILRs"”). So, Ms. H filed a lawsuit to request Company X for performing its obligations caused by illegal dismissal;

• In the first-instance Labor Judgment No. 02/2017/LD-ST dated 15 December, 2017 of the People'’s Court of District X, Ms. H’’s request was not accepted;

• In Judgment No. 02/2018/LD-PT, the appeal Court stated as follows:

• + On 2 September, 2015, Ms. H made "“Application for leave"” signed by Mr. Steve C. Ms. H asked Ms. L to submit the ““Application for Leave”” to the HR, but before leaving, Ms. H did not check if the HR received the ““Application for Leave”” from Ms. H and whether or not Company X allows Ms. H to take leave according to the application which is her error.

• + Company X has not regulated the process of receiving leave applications of the HR from employees, which is to make a delivery record. Therefore, it shows that the process of dealing with the leave regime of Company X for Ms. H is not strict, creating a loophole for the employer'’s disciplinary process;

• + The process of Company X considering disciplinary measures for Ms. H is not correct because there is no minute of the disciplinary meeting of Ms. H'’s Department according to ILRs;

• + Partially accepting Ms. H'’s request and revorking Decision 00415-HR/2016.
   

In addition, the employer must also consider the severity and consequences of the violation. Although Ms. H'’s taking leave without written of the Company'’s consent is her fault due to the carelessness, Ms. H'’s direct supervisor has confirmed that he has received the leave application and scheduled the work for the department which did not cause any interruption to the workflow and damages to Company X. Therefore, the severity of Ms. H ‘‘s fault is due to her carelessness in procedures. Ms. H did not consciously or deliberately disregard the discipline, rules and regulations of Company X. Overall, the severity of Ms. H'’s violation has not reached the highest level of discipline which is subject to dismissal.

Moreover, in the process of considering disciplinary measures, the employer must also consider the violation objectively. According to the above judgment, Company X has not stipulated that the process of receiving leave applications from the HR for employees is to make a delivery record. Therefore, objectively, when considering disciplinary measures against Ms. H, Company X must also consider the responsibility of the HR for not receiving Ms. H'’s leave application and loopholes in the process of dealing with the leave regime of Company X to provide a reasonable disciplinary action.