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Disciplinary measure of dismissal in vietnamese labour law

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MAI, NGUYEN THI XUAN

MINISTRY OF EDUCATION AND TRAINING
HO CHI MINH UNIVERSITY OF LAW
-----------***-----------BOARD OF ADVANCED PROGRAMS

MAI, NGUYEN THI XUAN
BACHELOR THESIS

DISCIPLINARY MEASURE OF
DISMISSAL IN VIETNAMESE LABOR
LAW

BACHELOR THESIS
Faculty: Civil Law.
Year: 2013 - 2017
YEAR OF 2017

HO CHI MINH CITY
YEAR OF 2017


MINISTRY OF EDUCATION AND TRAINING
HO CHI MINH UNIVERSITY OF LAW
-----------***-----------BOARD OF ADVANCED PROGRAMS

MAI, NGUYEN THI XUAN

DISCIPLINARY MEASURE OF
DISMISSAL IN VIETNAMESE LABOR
LAW



BACHELOR THESIS
Faculty: Civil Law.
Year: 2013 - 2017

Proposed Supervisor: M.A. Chien, Thi Dinh
Student
: Mai, Nguyen Thi Xuan
Student ID
: 1353801011120
Class
: Advanced Class of 38A

HO CHI MINH CITY
YEAR OF 2017


Table of Contents
CHAPTER

1:

OVERVIEW

ON

LABOR

DISCIPLINE


AND

DISCIPLINARY MEASURE OF DISMISSAL .....................................................1
1.1.
Overview on Labor discipline ...............................................................1
1.1.1.
1.1.2.

Development of Labor discipline through periods ...............................1
Definition of Labor discipline ...............................................................4

1.1.3.
1.1.4.

Characteristics of Labor discipline .......................................................7
Measures of labor discipline ...............................................................13

1.2.
1.2.1.

Overview on Disciplinary measure of dismissal .................................15
Definition of Disciplinary measure of dismissal ................................15

1.2.2.
Characteristics of Disciplinary measure of dismissal and its
classification .............................................................................................................16
1.2.3.
Distinction between Disciplinary measure of dismissal and
unilaterally terminate the labor contract in accordance with law .............................18
1.2.4.

The meaning of Labor discipline in general and dismissal in particular
(hereinafter called Labor discipline) .........................................................................21
CONCLUSION OF CHAPTER 1 ..........................................................................25
CHAPTER 2: ACTUAL STATE OF REGULATIONS ON DISCIPLINARY
MEASURE OF DISMISSAL IN VIETNAM AND PETITIONS .......................26
2.1.
General principles on Disciplinary measure of dismissal ...................26
2.2.
Legal basis of Disciplinary measure of dismissal ...............................31
2.3.
Statutory limitation of Disciplinary measure of dismissal..................38
2.4.
Precedures of Disciplinary measure of dismissal ...............................43
2.5.
Legal consequences of Disciplinary measure of dismissal .................53
CONCLUSION OF CHAPTER 2 ..........................................................................59
CONCLUSION .......................................................................................................60
REFERENCES
APPENDIX


INTRODUTION
1.
Reasons for choosing the topic:
In the current trend of globalization and international economic integration, our
country is stepping up the process of industrialization and modernization of the
country, integrating with the world economy and achieving certain achievements.
Making production and business activities more and more expanded and developed.
Therefore, business units are established and put into operation more and more. As
we all know, the quality of human resources is the decisive factor in the growth and

success of businesses. An enterprise that wants to maintain the stability of
production and achieve high-profit margins will always need to grasp, maximize
and effectively utilize its human resources. As Willian Petty – a well-known
economist from England once said: “Labor is the mother of wealth, while land is
the father of wealth”, it is obvious that labor and land are very important in the
business life. It is a matter of fact that the larger size of the business, the higher the
role of the employee. Therefore, the promotion of qualifications, expertise,
experience, as well as raising the sense of duty of labor should be given great
attention. Labor discipline is a tool for employers to maintain order, discipline, and
order in the workplace which will contribute to creating a more professional
working environment with high morale and sense of responsibility for both workers
and employers. However, current situations of workers violating labor discipline are
increasing rapidly. In addition, procedures of labor discipline against employees do
not always take place in accordance with the basis and procedures stated by law.
The consequence is that the rights of both workers and employers are directly and
seriously affected, resulting in disagreements, disputes, and even grievances on the
disciplinary action. Procedures of not only labor discipline but also dismissal in
particular, if not followed seriously, will lead to corollary implications for the
economy - politics such as collective labor disputes, strikes, and other issues that
cause business interruption - which will have a great effect on the profitability of
the company. Corporations nowadays pay more attention to the dismissal,
especially in the fierce competition of the market economy. In fact, labor discipline
in general and dismissal, in particular, are the key issue in human resources
management. Especially, dismissal is always considered as the strictest labor
discipline which will end the employment relationship permanently. Moreover,
there are very few studies on Vietnamese dismissal that are in English, which may


make international students or researchers, as well as lawyers practice law in
Vietnam, find it hard to access to Vietnamese dismissal.

For those reasons, it is necessary to have a scientific study and research on the
matter of labor discipline, specifically on the problem of dismissal. The bachelor
thesis of “Disciplinary measure of dismissal in Vietnamese Labour Law” is in hope
of being a part in contributing to the improvements and solutions to the provisions
on dismissal of Vietnamese labor law.
2.
Actual state of recently researches relating to the topic:
Recently, there have been a number of research projects with varying scopes on
dismissal in Vietnam such as:
For the thesis master, there have been works by authors such as: "Labor discipline
under labor law" (2004) by Tri Thi Kim Chau, " Law on dismissal in practice of
enterprises in the province of Binh Phuoc (2007) by Huynh Quoc Anh, "Resolving
disputes on labor discipline in the form of dismissal in the court - Reality and
solution (2011)" by Pham Thi Minh Chau. Those studies have given an overview of
the disciplinary measure of dismissal as well as proposed some recommendations to
improve the legal system. However, these essays only focused on studying the
regulations of the 1994 Labor Code and related implementing guidelines. The first
stated essay is theoretical and had no practical insight. The second one focused on
research in the Binh Phuoc province but has not pointed out the cause of that
situation. The last one focused only on solving disputes on disciplinary dismissal in
court and not really in relation to the law.
For the thesis of bachelor, there are also many theses about dismissal such as "Law
on Labor Discipline in Enterprises" (2011) by Hoang Thi Thuy Linh, "Dismissal in
Labor Law of Vietnam"(2015) by Nguyen Thi Hoai Yen, “Dismissal in Labor Law
of Vietnam” (2016) by Pham Thi Minh Trang. Although these theses have put
forward a number of disputes about dismissal in practice, there have been some
cases that have taken place for quite long ago (for example: in 2004) and therefore
do not accurately reflect the current situation. In addition, none of the stated theses
were written in English, which made them hard to accessible by foreign researchers.
At the same time, though the studies made a very positive contribution to complete

the provisions on dismissal, they do not really guarantee the balance of rights of
workers and employers.


There are also a number of articles in the legal journals such as: "Considering
issues regarding to the legality of the dismissal in labor case at court” (2004) by
Nguyen Xuan Thu , "Comment on completing of regulations on labor discipline and
some recommendations” (2010) by Tran Hoang Hai, "Some issues on the illegal
dismissal in accordance with the provisions of the Labor Code” (2012) by Nguyen
Huu Luc, "Current status of authority of Labor Discipline and Recommendations”
(2014) by Do Thi Dung, "Legal consequences of dismissal” (2014) by Tran Thi
Thanh Ha. These articles reflect some of the current states in the application of
dismissal, at the same time providing practical opinions; however, these articles
only mention one or several issues of dismissal and not in deep comprehension.
The above theses and studies are extremely valuable resources for authors in the
research process of regulations on dismissal in Vietnam.
In the research, the author will not only decompose dismissal in Vietnam but also
learn the experiences of some countries to improve the effectiveness of applying
dismissal.
3.
Purpose of the research:
The purpose of the thesis is to study in a holistic and systematic manner about the
disciplinary measure of dismissal, as well as clarify issues of theoretical grounds
and contents of current legislation on disciplinary dismissal with the aim of pointing
to the status quo of the law as well as the advantages and disadvantages in the
application of dismissal. From there, the author proposes some recommendations to
improve the provisions on dismissal.
4.
Object and scope of the research:
- The subject of the study is the dismissal in the employment relationship between

employees and employers in accordance with the Labor Code 2012.
- The scope of research: legally, the thesis focuses on studying the current law on
disciplinary measures of dismissal and at the same time comparing to a number of
countries such as Brazil, Japan, Australia, Canada, China, Ireland, French, Italy,
German and Britain. This topic refers only to the traditional labor relations between
the worker and the employer in relation to the labor contract. The research does not
cover relationships such as: subleasing of labor, domestic servants, as well as other
relationships. Specifically, the subject only addresses issues of dismissal such as
legal grounds, principles, procedures, legal consequences. In practice, the author
only introduces a number of typical cases that happen recently to point out the


inadequacies and limitations of the current law. Finally, the author provides
solutions to improve the provisions of law on dismissal.
5.
Methods of the research:
The topic is mainly studied on the basis method of the methodology of Marxism,
Ho Chi Minh's thought, the method of dialectical materialism and historical
materialism. To be more specific, methods used by the author include: analysis,
synthesis, comparison, statistics, combining theoretical and practical surveys on the
basis of information from sources such as newspapers, the Internet, legal science
journals... in order to evaluate and clarify the issues the author wants to address.
6.
Research’s scientific significance and its value of application:
Through the process of research, the author concentrically and systematically
analyzes the provisions on dismissal in Vietnamese law. The author has studied and
assessed the practical application of the law while learning the legal experience of
progressive countries in the world to make positive contributions to improving
legislation on dismissal in Vietnam. On the other hand, the author hopes the
research becomes a reference source for not only international research but also

national future research related to dismissal in Vietnamese law as well as in the
comparison of dismissal in Vietnamese law with that of foreign law. Finally, the
author wishes to improve the provisions of the current provisions on dismissal
through some of the recommendations.
7.
Structure of the research:
In addition to the introduction, conclusion, list of references and annexes, the
thesis is structured as follows:
Chapter 1: Overview on labor discipline and disciplinary measure of
dismissal
Chapter 2: Regulations and actual state of disciplinary measure of dismissal
in Vietnam and petitions


CHAPTER 1: OVERVIEW ON LABOR
DISCIPLINARY MEASURE OF DISMISSAL

DISCIPLINE

AND

1.1. Overview on Labor discipline
1.1.1. Development of Labor discipline through periods
1.1.1.1.
Labor discipline in “pre – Doi moi” period (before 1986)
The Vietnamese labor law had been developed through every ups and downs
period of history1.
To be more precise, the discipline of dismissal occurred in the early 1945s.
Vietnam issued the Decree No. 1 on 1st October, 1945 (amended and supplemented
by Decree No. 5 issued on 23rd November,1945) which stipulated the time limit for

reporting before dismissing workers. However, it was not only when the
Vietnamese President issued the Decree No.77/SL on 22nd May 1950 on stipulating
the provision of workers in custody during the resistance period together with the
regulation of workers adjust the labor relations in the state sector was the
disciplinary measures of dismissal formally recognized as a form of the labor force.
Article 47 of the Decree No.77 stipulated that "depending on the seriousness of the
fault, the offender shall be subjected to one of the following penalties: warning,
reprimand, postponement of promotion within one or two years, crossing off the
payroll list or discharging”.
In the early 1960s, the South continued to fight against American imperialism, and
the North went on to build socialism. The regulations on labor discipline in general
and dismissal in particular were strengthened. On 31th December, 1964, the
government issued the Decree No.195/CP on regulating labor regulations in state
enterprises. This was a document which regulated industrial relations between the
state-owned enterprises and the state employees. In Article 5 of Decree No.195,
four measures of discipline were introduced, which depended on whether the
seriousness of the employee's mistakes. In those four measures of disciplines, the
disciplinary measure of forcing to quit job was mentioned and this can be
considered as the disciplinary measure of dismissal in the current Labor law.
Diem, Pham (2007), “Development of Labor law in Vietnam”, State and Law institute Vietnam,
(157). Last updated on 20 May, 2017, available at:
http://Vietnamlawmagazine.vn/development-of-labor-law-in-Vietnam-4341.html
1

1


Disciplinary measures, at that time, were only applied in case the offenders "caused
great harm to the state". In principle, when it comes to the application of
disciplinary measures of dismissal, "the employee is not eligible for severance

allowance" pursuant to Article 6, Decree No.195. In addition, Decree No.195 also
regulated five things on the discipline included: “1. Obligate properly the labor
norms, complete production plans and work programs with the best quality; 2.
Comply strictly with the directives and resolutions of superiors as well as the
responsibilities prescribed in production and work; 3. Adherence to technical rules,
procedures, techniques and labor safety; 4. To strictly abide by the enterprises'
rules, fully and properly use the working hours regulated by state; 5. Protection
public property, prevent the waste of materials and time, promote revolutionary
vigilance, as well as the obligation of keeping state's secrets; Maintaining order
and hygiene of workplace”2. Together with this, there were also many labor-related
documents came in force to guide the provisions on labor discipline such as:
Circular No.12-LD/TT dated 28 May 1977, Circular No.03-LD/TT dated 28
December 1979, Circular No.13-LĐ/TT dated 4 December 1979 etc. By issuing
those legal documents, labor discipline was considered by the government as a
necessary requirement to boost the labor production: "Although the structure is
unreasonable and there is a harmony of the two types of objects: workers and civil
servants, which have different characteristics, but have been widely circulated for
30 years. In the 1970s, a number of business units have taken several measures to
strengthen the disciplines”3.
With the issue of many labor documents, the Vietnamese Government and the
State expressed a view that "it is necessary to ensure good completion of production
and work plans in enterprises and agencies in Vietnam; At the same time, it also
represents a concentration of political enlightenment, organizational consciousness
and the spirit of mastery of workers and officials"4.
In conclusion, regulations were just focused on the state-owned labor relationship
which means that the rights of employees working outside the state-owned
2

Decree 195/CP dated 31th December 1964 on publishing internal rules and labor discipline in
state-owned enterprises of Vietnam, Chapter 1, Article 2.

3
Ha Noi National University (1995), Curriculum of Labor law in Vietnam, San, Dang Duc – Thu,
Do Gia - Phan, Nguyen Van, Ha Noi National University publisher p.193.
4
Circular No.13/TT-LB dated 30th August 1966 on explaining and guiding to execute rules of
labor discipline in state-owned enterprise, organizations, part “Objective, meaning and quotation”.

2


enterprises were still not assured and remained not yet specific. At that time,
employment did not become a burning issue in social life. Labor relations therefore
heavily bore an administrative and mandatory nature.
1.1.1.2.
Labor discipline in “Doi moi” period (from 1986)
Things then quickly changed after the reunification of the country. Thanks to the
“Doi moi” (renewal) period, Vietnam actively integrated into the world economy,
which led to the incremental establishment of the labor market. The labor relations
since then were never the same anymore. Labor relations were more diverse,
dynamic and complex than they were before. No longer did employers be stateowned enterprises and organizations but also included private and foreign-invested
enterprises.
From 15th to 18th December 1986, labor relations were redefined in line with the
new mechanism: “The Labor Code regulates labor relations between the salaried
employee and the employer, and the other social relations directly related to labor
relation”5. However, rules on the labor discipline were mainly governed by Decree
195 of which the provisions were increasingly unsuitable with the development
orientation in the legal system in the period of Doi moi. The regulations on the
disciplinary measures in general and the dismissal in particular should be more clear
and easier to understand. In such a context, several years after Doi Moi economic
reforms were the country’s first-ever Labor Code was passed by the National

Assembly of the Socialist Republic of Vietnam on June 23, 1994, promulgated by
the State President on July 5, 1994 and came into force on January 1, 1995. The
Labor Code 1994 then set aside a chapter on labor discipline. In particular,
disciplinary measure of dismissal was considered as an important regulation of the
labor discipline problem. The Labor Code 1994 listed the procedures as well as the
grounds for the disciplinary measures to be adopted by the employers in the event
of a breach of contract. In addition, in order to regulate and instruct the
implementation of a number of articles on labor discipline and material liability, the
Government issued Decree No.41/CP dated 6 July 1995, Circular No. 19/2003/TTBLDTBXH Dated 22 September 2003 guiding the implementation of a number of
articles of Decree 41 dated 6 July 1995 which was amended and supplemented by
5

Labor Code (No. 35-L/CTN) dated 23th June, 1994 (amended in 2002, 2006, 2007), Article 1.

3


Decree 33/2003/ND-CP dated 2 April 2003 of the Government. At that time,
Vietnam’s Labor Code was originally created based on the foundations of the
Constitution reflecting the many policies of a centrally planned economy. However,
undergoing a process of applying the regulations in 1994, these disciplinary
provisions showed many obstacles, which make it difficult to apply in practice. The
labor market in Vietnam enhanced and expanded too extensively and intensively
that made the labor relations have become increasingly diverse and complex,
involving more foreign elements. The labor law therefore had to be modified to
meet the requirements of intensified international integration and international
practice. Consequently, laws amending and supplementing a number of articles of
the 1994 Labor Code were passed by the National Assembly alternately in 2002,
2006 and 2007. These amendments concentrated on the following key and essential
matters in labor relations such as Labor discipline and material liability, salary,

labor contract etc.
Nearly two decades later, the Vietnamese economy has changed significantly. The
accession to the World Trade Organization (WTO) in 2006 resulted in trade
regulations loosening up and a sizable influx of foreign direct investment.
Accordingly, the new Labor code 2012 has added some legal grounds for
disciplinary. It also crossed off dismissal as one of a form of unilateral termination
of labor contract of the Labor code 1994 and add some points about the order and
procedure when the employers apply disciplinary measures on the employees.
1.1.2. Definition of Labor discipline
It is obvious that labor plays an important part in human history and his
development. With labor, human beings can create the world of physical and mind
to respond to their own needs as well as materials for the society. As a famous
saying of the 16th President of the United States Abraham Lincoln: “Labor is prior
to, and independent of, capital. Capital is only the fruit of labor, and could never
have existed if labor had not first existed. Labor is the superior of capital, and
deserves much the higher consideration”6. Theodore Roosevelt also said that “It is
only through labor and painful effort, by grim energy and resolute courage, that we

6

Abraham Lincoln (1861), Lincoln's First Annual Message to Congress.

4


move to better things7”. In the relations of the employee and the employer, the
employer is entitled to issue rules and orders so as to not only maintain the
workplace order but also to ensure labor norms. Hardly can the employers manage
and improve the performance of their employees without the labor discipline. It is
the labor discipline that forces the employee to comply with the orders and rules

that set out by their employer. Derived from the nature of the relationship between
the employee and the employer, the right of labor management of the employer – as
owner of the production, management, and operation of the companies, is
indispensable. The right of labor management stated above is not only mentioned in
the agreement between the employer and the employee but also in the legal
documents. For that reason, if somehow this right is not covered in the labor
contract, the employee is still forced to act under the employer’s control. In other
words, to guarantee the interests of the parties involved in labor relations and of the
public, this right of the employer must be in accordance with provisions determined
by law.
To gain a better understanding about the labor discipline, it is the definition of it
should we know. In social aspect, according to the Vietnamese encyclopedia
dictionary, labor discipline is understood as “the working regime has been
prescribed and the strictly obeyed by every level, group of people as well as each
person in the process of labor. This creates the harmony of all production elements
and links each person to a unified process”8. It is also interpreted in the Vienamese
dictionary as “The whole mandatory set of the regulations for the acts of members
of an organization to ensure the rigor of the organization”9. On the two definitions,
labor discipline is understood in a broad sense as a measure to force the employee
to act under the lawful control of the employer in order to maintain a healthy
condition for the workplace.
In the science of labor, labor discipline is considered in two aspects which are as
an element in the relation of labor law and a regulation of labor law (as legal
aspect)10.
7

Theodore Roosevelt (1897), The Forum, Dickinson School of Law, p.200.
Vietnamese national council (2002), Vietnamese Encyclopedia dictionary, Encyclopedia
publisher, (2), Ha Noi, p.549.
9

Phe, Hoang (2006), Vietnamese dictionary, Da Nang publisher, p.159.
10
Ha Noi National University (1999), Curriculum of Labor law in Vietnam, Pham Cong Tru,
p.264.
8

5


As the stated former, a disciplinary sanction is showed in the rights and obligations
of the relation of employees and employers: the right to establish and maintain the
labor discipline belongs to the employer, while the obligation to implement is of the
employee. However, the right to establish and maintain work discipline must
always be acted within a reasonable and lawful framework. With the purpose of
making the best of the labor process and gaining the most profit - the set of rules
created to stabilize the order and self-discipline of a workplace is namely as the
labor discipline.
In the latter aspect, its definition is stipulated in both the Labor code of 1994 and
2012. In Article 82 of Labor code 1994 and Article 118 of Labor code 2012, the
definition gradually is “the set of norms regarding the time, technology and
management of production and business. It is stipulated in the labor regulation. The
labor regulation must not contravene the labor legislation and other legislation”11
and “regulations on compliance with time requirements, technology and production
and business administration as stipulated in the internal working regulations”12.
Labor discipline is considered in a much narrower meaning compare to the social
aspect as in both labor code as it is only the act set out by the employer and they are
regulated within working hours of a specific organization.
When signing the labor contract, it is equally the moment that the employee is
under control of the employer. In order to limit the misusing power of the employer,
labor discipline must be prescribed in the labor regulation. This rule is based on the

situation of different companies so that each company will have their own rule
which will be the materialization of the labor discipline. In other words, labor
regulation is the legal reflection or a legitimate tool of the labor discipline. Hence,
disciplinary measures can be understood in the narrowest sense that sanctions that
can be imposed by the chairperson of a disciplinary process after the employee has
been found guilty of misconduct on a balance of probability. Even the law is not
defined obviously the meaning of the company rule, it can be easily seen as
regulations of the company that needed to be followed by that company’s
employees. The rule, therefore, must contain the compulsory matters required by
the law. With the development of the labor relations, there are different
requirements for each period. For example, Decree 41/CP dated 6 July 1995
11
12

Labor code 1994, Article 82.
Labor code (No. 10/2012/QH13) dated 18th June, 2012, Article 118.

6


covered the following main issues: the work and break time; Discipline in the
business; Labor safety and labor sanitation at the work place 13. In the Labor code
of 1994 and 2012, except for the three points stated in Decree 41/CP, a labor
regulation must comprise the following essential points14: Protection of property
and technology and trade secrets of the business; Acts which violate labor
discipline, disciplinary measures and material liability15. Basically, labor regulation
must not only contain those requirements but must also be not violated the law. In
brief, there are no differences in requirements between the Labor code of 1994 and
of one 2012. Another required procedure of “before the issuance of the internal
working regulations, an employer shall consult the representative organization of

the grassroots-level employees’ collective”16 is added to both codes in order to
ensure that the internal regulations would not be an overpowering of the employer.
This a procedure is also a legal ground for the employer to force their staffs to obey
the rule if the working regulations are passed publicly without any disagreements of
the employees.
In conclusion, labor disciplinary measures can be defined in many various aspects.
However, in this thesis, all discussion will be considered as a legal aspect as a
synthesis of legal provisions not only regulate the obligations and responsibilities of
employees for enterprises but also stipulate measures to encourage the exemplary
workforce as well as the forms of treatment Reason for non-compliance or
incomplete fulfillment of such obligations and responsibilities. In other words,
disciplinary measures are orders stipulated in a company policy that the employee
must obey when they participate in the labor relationship by signing labor contract.
1.1.3. Characteristics of Labor discipline
The legal nature of labor discipline is undoubtedly the right of the employer. In
order words, this is a part of the labor management of the employer. Therefore, in
foreign laws, almost no provisions on labor disciplinary measure, as well as the
material responsibility are mentioned but only the dismissal itself 17, for example,
13

Decree No.41/CP dated 6 July 1995, Article 3.
Labor code 2012, Article 119, section 1.
15
Labor code 1994, Article 83, section 1.
16
Labor code 2012, Article 119, section 3.
17
Lam, Tran Thuy (2006), “Defination and legal nature of labor discipline”, Legal magazine (9),
p.26 – 29.
14


7


the Labor code of Crezh (2006) or Employment Rights Act 1996 of the United
Kingdom etc. A French lawyer explained the matter as follows 18: "Until 1982, the
French Labor Code was virtually silent about labor discipline. Precedents
automatically considered this right is the function of the employer. However, the
precedents did not supervise the enforcement and the despotism of the employer.
The court also held the theory that the employer is the only court acted for the
benefit of business in any cases".
Having been proclaimed by Lenin as “the peg of the entire economic construction
of socialism, the basis of our understanding of the dictatorship of the proletariat,”
labor discipline became a yardstick by which individual workers’ “consciousness”
could be measured. However, we are living in non-stop growing world - where the
equality is a human right, and that make people ask themselves that whether the
labor relations that are established on the basis of a contract and in the manner of
voluntariness and freedom is enough to give the employer the right to impose the
rules, sanctions and penalties based on the fault of the employee? From here, the
characteristics of labor discipline may be withdrawn from the following basic
features:
Firstly, the establishment and enforcing labor discipline on the employee are the
unilateral right of the employer. This right of management arises from the
employer's management of labor and is not the result of the agreement between the
parties through the contract of employment. Unilateral use of the power of the
employer is essential. On the human resources aspect, employers are not
responsible for discussing or discussing with others when they issue labor rules.
Employers have a right to choose the optimum management method for their
performance. The decisions are considered and applied by the employer, depending
on the circumstances and the target group, to achieve the ultimate goal. However, it

should be understood that unilateralism does not constitute an absolute right.
Employers are still able to consult other sources for settlement or compromise while
taking a decision. In order to establish the labor relations by labor contracts, parties
do not have to agree on labor discipline. Though labor discipline is not a mandatory
provision of the contract, workers are required to obey the labor regulation when
they entered into the labor contract. That is, employees who engage in labor
Ministry of Labor, Invalid and Social Affairs (1993), “Foreign legal documents of labor law”,
p.89.
18

8


relations will naturally place themselves under the management of the employer. If
they do not comply with these regulations, there will be sanctions for breaking the
rules. The collective activity of workers in factories, workshops, docks etc. requires
being orderly placed in a manner for the assurance of the labor discipline and goals
of the activities. We can compare labor discipline as the role of the captain of a ship
- his role is indispensable. The right of administration of the employer is the
"property" of the employer. Only the employer has that right. The right to manage
the employee is considered as a natural right of the employer, just as same as the
right of working is the natural right of the worker in particular and of human beings
in general. It is a type of "treasure" cannot be transferred to workers. Because labor
management is an indispensable power with the purpose to maintain industrial
relations as well as the process of production.
Secondly, the employer's right to apply labor discipline on the employee is limited
by the law and the employment relationship. The promulgation of regulations on
labor discipline as well as the imposition of penalties on employees is the right of
the employer. However, this right of the employer is a limited right in order to
avoid the abuse of power as well as disadvantages for the employee. Without

limitation, the employer may incapacitate the employee arbitrarily or force the
employee to follow harsh laws and infringe upon human rights. In principle,
employees are subject only to the employer's management with the issues involved
and occur in the course of work. Problems outside of that scope are not obliged by
the employee. Even if employees are disciplined, they still have certain freedoms
such as the right to counsel, the right not to offend their dignity. Therefore, the right
of labor management cannot be an omnipotent. Basically, the property of a
company owns is what affirms the management right and also what limits this right.
In addition, labor administration rights cannot be higher than national sovereignty.
At first, this right was almost unrestricted until the abuse of employers' rights was at
such an alarming rate that the law had to intervene to protect workers. For example,
in the Italian civil code of 1942 states that: “Non-compliance with provisions in the
Articles 2104 and 2105 of the Italian Civil Code may generate disciplinary
sanctions according to the nature of the violation and the norms of the Collective
Bargain Agreements”19. In other words, when an employee violates his or her duty
19

Civil Code dated 16th March, 1942, Article 2106.

9


of honesty, the employer may decide that the employee is subjected to a remedy in
proportion to the breach. To be more specific, the employee’s duties is based on
Article 2104: “When an employee violates his or her duty of honesty, the employer
may decide that the employee is subjected to a remedy in proportion to the
breach”20 and Article 2105: “Exploiting documents and
technologies belonging to the Company for other ends is an example of
competitiveness by an employee”21. These are examples of the diligence, loyalty,
impartiality duties which are expected by the behavior and performance of an

employee: violating the Code equals violating the primary contractual obligations or
committing a disciplinary breach. It implies consequences as in the law and the
collective bargain agreement which would put at risk the working relationship and
even imply a compensation for possible damages. For those reasons, the law
allowed the employer have the absolute right on applying labor discipline. It is not
until 1966 that those provisions are amended to limit the right of dismissal on the
employee by the establishment of procedures for dismissal.
Thirdly, the object of the disciplinary action is the employees who are employed
and paid by a labor contract. In particular, according to the 2012 Labor Code,
dismissed subject is always employees who are paid wages by the employer. The
workers here are understood in the legal sense as: “a person who is full 15 years or
older, has the ability to work, works under a labor contract, is paid with wage and
is managed and controlled by an employer”22. With the purpose to make the work
runs smoothly and keep the employee in an order, the law clearly regulate that it is
the obligation of the employee to act in line with the internal regulation set out by
the employers as well as their direction23. The labor relationship between the
employee and the employer is, therefore, a labor-buying relationship. Employees
work and employers pay wages based on the labor force spent by workers. For that
reason, the employees have the obligation of “To obey labor discipline and internal
working regulations and follow lawful administration of the employer”24. This
agreement is represented by a labor contract. This also implies that labor discipline
only arises within the scope of specific labor relations. Meanwhile, the one who
20

Civil Code dated 16th March, 1942, Article 2104.
Civil Code dated 16th March, 1942, Article 2105.
22
Labor Code 2012, Section 1, Article 3.
23
Labor code 2012, Point b, Section 2, Article 5,

24
See id.
21

10


subjected to the discipline of public servants is officials and public employees those who are elected, ratified, appointed and salaried by the state budget as well as
other non-business revenue sources according to the provisions of law25.
Fourthly, the employer is who apply the labor discipline on the employee. The
Marxists and Angles affirmed in the Communist Party statement that in the society
of classes, the class which possesses the means of production of society is the one
holds the social dominance in economic terms and thus dominates ideology and
politics26. Labor merchandise is not visible but is only reflected in a finished
product at the end of each stage. Because of its invisibility, employers must be
allowed to operate in labor relations as well as the right to promulgate labor
discipline and the handling of offenses in order to ensure production efficiency.
However, this right must always be limited to the law of a country. More
specifically, the employer has such right as: “to recruit, arrange and manage
employees according to the requirements of production and business; to perform
commendation work and handle violations of labor discipline”27. As can be seen,
the employers here mean: “an enterprise, an agency, an organization, a
cooperative, a household or an individual that hires or employs employees under
labor contracts; if the employer is an individual, he/she must have full civil act
capacity”28. The labor code 2012 defined the employers here are understood to be
“an enterprise, an agency, an organization, a cooperative, a household or an
individual that hires or employs employees under labor contracts; if the employer is
an individual, he/she must have full civil act capacity”29. The employer has the
rights to “recruit, arrange and manage employees according to the requirements of
production and business; to perform commendation work and handle violations of

labor discipline”30. For the cadres or civil servant, however, only public nonbusiness units or socio-political organizations have the right to regulate labor
discipline. In brief, corresponding to the obligation to comply with labor discipline,
the discipline of labor is the right of the employer.

25

Law on Cadres and civil servant (No. 22/2008/QH12) dated 18th November, 2008, Article 4.
Marxists and Angles (1848), Communist Party statement, Part 4.
27
Labor code 2012, Point a, Section 1, Article 6.
28
Labor Law 2012, Section 2, Article 3.
29
See id.
30
See id at (27).
26

11


Fifthly, the basis for the application of labor discipline is the violation of labor
discipline regulated in the internal rules by the employee. Violation of labor
discipline is an act of violating the obligations prescribed in the labor regulations of
the unit. In specific circumstances, internal rules are required as “an employer
employing 10 or more employees must have internal working regulations in
writing”31. In relation to the dismissal of employees, the employee shall make
specific provisions on the dismissal of workers in Article 126. If the employee
commits acts which cause serious injury to the unit or the employers, but it is not
defined in the internal labor regulations, the employer must not dismiss the

employee for such action. Where the employer deliberately fired the employee for
committing an act not prescribed by the law – which is called “unfair dismissal”.
Another violation that is easy to mistake with dismissal is the type of layoff. A
layoff32 is not the same thing as being dismissal because it is not considered to be
the fault of the employee, but the employer33. Layoff occurs when a company
undergoes a form of restructuring, or they go out of business. Sometimes layoff can
be temporary as the employee may be rehired when the economic situation
improves while when an employee is dismissed, there is generally no expectation of
being rehired at a future date.
On the other hand, cadres and civil servants are subject to disciplinary action
when they violate the obligations of officials and public servants as provided for by
law as stated in Article 78 and Article 79 of Law on Cadres and civil servant.
Whereby, there are four disciplinary measures for cadres as34: reprimand, caution,
demotion and removal from office; And six measures for civil servants as35:
reprimand, caution, demotion, removal from office and sack. Moreover, unlike
workers whose labor discipline are only within their labor relationships, the
obligations of workers and civil servants not only include obligations of their

31

Labor code 2012, Section 1, Article 119.
Layoff also means redundancy in UK’s labor law.
33
Rachel Fausnaught (2015), Fired vs Layoff: The differences and why it matters, PrimePay, last
updated on 6 June, 2017:
“http://primepay.com/blog/fired-vs-laid-difference-why-it-matters”
34
Law on Cadres and civil servant, Section 1, Article 78.
35
Law on Cadres and civil servant, Section 1, Article 79.

32

12


specific area but also towards the Communist Party of Vietnam and the State of the
Socialist Republic of Vietnam and the people36.
Finally, the responsibility for labor discipline is applied according to the order and
procedures prescribed by labor law. Besides this, when carrying out disciplinary
action, the employers must also comply with the rules on disciplinary procedures as
these are grounds for considering the legality of the discipline decision. Labor
discipline is the right but also the obligation of the employer to follow the process
to ensure the legal rights of the employee so that disciplinary action is taken
accurately. Meanwhile, the disciplinary responsibilities of cadres and civil servants
are regulated by the provisions of the law on cadres and civil servants.
1.1.4. Measures of labor discipline
According to the law, the responsibility for labor discipline is: "the type of liability
imposed by the employer on the employee who has violated the labor discipline by
committing one of the forms of labor discipline"37. Thus, when the violation of labor
discipline, the employee must "bear one of the forms of discipline"38. According to
Article 125, Labor law has now legalized these sanctions into various forms of labor
discipline. All of them are only used in cases that are regulated in the internal rules
by the employer. Those are:
First, reprimand is the least severe form of disciplinary action. This form is mainly
a reminder and does not directly affect the material to workers. In other words,
reprimand is applied to first-time offenders, but at a mild level and only for
psychological impact. Reprimand must be in written form39.
Second, prolongation of the wage rise period for no more than 6 months or
removal from office. These are two different forms but have the same grounds
applied. In fact, the application of one of these forms by the employer depends on

three factors: the degree of discipline violation, the actual situation of the unit and
the circumstances of the employee40. Compared to the reprimand, these forms of
labor discipline are more severe. If the reprimand is a mental remedy, these two
36

Law on Cadres and civil servant, Article 8.
Ha, Do Hai and Hai, Tran Hoang (2013), Labor Law, Hong Duc - Vietnam Lawyers Association
Publisher, Ha Noi, p.401.
38
Nguyen, Diep Thanh (2012), Basic labor law curriculum, Can Tho University, p.90.
39
Labor Code 2012, Point d, Section 1, Article 123.
40
People’s police (2015), Labor law curriculum, Nguyen Hien Phuong, Ha Noi, (8), Ha Noi, p.71.
37

13


penalties directly affect the occupational status and income of workers. And
therefore, they have more deterrence than the reprimand.
Third, dismissal is the most severe form of disciplinary action that results in legal
consequences for workers ending employment. Therefore, the law strictly governs
the application of this form. Dismissal is only to be used in certain cases provided
for by law. Its nature and legal issues will be discussed in detail in Chapter 2.
Draw from disciplinary measures above, the form of labor discipline can be seen
as the manner prescribed by law which the employer applies to laborers committing
acts of violation41. In Vietnam, due to the nature of labor relations has changed over
time, the regulation is different then. Specifically, Decree No. 76 / SL of May 20,
1950 stipulating seven penalties for civil servants42 (warning, reprimand, delay

promotion for one or two years, remove the name in the promotion board, lowering
one or two scales, forced resignation, removal), Decree No. 76 / SL of May 22,
1950 stipulating five forms of punishment for workers (warning, reprimand,
postponed promotion within a year or two, remove the name on the promotion
board, sack)43, Decree no.195/CP on labor discipline44 stated four forms of
application to both workers and government employees (reprimand, warning,
infrastructure/downgrade/move to other places, forced dismissal). And currently,
the two objects are employers and employees have been adjusted differently as
analyzed above.
In summary, depending on the extent of the violation and the extent of the fault,
the employer decides to apply the appropriate form of discipline as stipulated in the
labor regulations and the law. From that, it can be seen that Vietnamese labor law
strictly controls the regulation and application of forms of labor discipline in order
to avoid the abuse of the employer's rights.

41

Faculty of Law - Ha Noi University of Social Sciences and Humanities (1999), Labor law
curriculum, Ha Noi, p.278.
42
Decree no.76/SL dated May 20th, 1950, Article 56.
43
Decree no.77/SL dated May 22th, 1950, Article 47.
44
Decree no.195/CP dated December 31th, 1964, Article 5.

14


1.2. Overview on Disciplinary measure of dismissal

1.2.1. Definition of Disciplinary measure of dismissal
According to Oxford Dictionary of Law, in employment, dismissal is defined as
“the termination of an employee's contract of employment by the employer. An
employer usually dismisses the employee by giving him the required period of
notice, but dismissal without notice may be justified in certain circumstances”45.
The Black’s Law dictionary, however, does not use the term “dismissal” but by
“remove from office”, which means that “deprivation of office by act of competent
superior officer acting within the scope of authority (or the dismissal from the
office)”46. Though the laws of most countries in the world do not have any specific
definition of dismissal, it is clear that the conditions and procedures of dismissal are
always stated in the employment law such as Employment Rights Act of the UK in
199647, Italian Civil Code in 194248 or French Labor Code49.
Similarly, the Vietnamese legal system does not provide a specific definition of
dismissal. As stated above, instead of using the current term “dismissal (sa thai)”,
Vietnamese legal system used the term “thai hoi”50. Pursuant to Vietnamese
Dictionary, dismissal in the years of 1950s was seen as a way that the employees
“to be fired at state-owned units or to be forced to quit the job”51. The meaning of
dismissal showed that the scope of its application was narrow in the stated-owned
area. However, with the emergence of the Labor code in 1994, the meaning was
changed slightly. The Legal Dictionary provides the definition of dismissal as "a
form of disciplinary action whereby an employer ceases to use an employer's
employment"52. Another Legal Dictionary defined dismissal as: “forms of
disciplines that the employer applies to the employee by unilaterally terminating the

45

Oxford Dictionary of Law, Fifth Edition, Oxford University Press, p.155.
Henry Campbell Black (1968), The Black’s law Dictionary, (4th Edition), West Publishing Co.
publisher, p.1459.
47

The Employment Rights Act of the UK (1996), The stationery Office Limited, London, Article
95 to Article 101, Chapter 18, p. 56 - 61.
48
Italian Civil Code 1942, Article 2106.
49
French labor code (consolidated version of March 8, 2015), Section L. 1232-2.
50
Decree no.77/SL dated May 22th, 1950, Article 47.
51
Phe, Hoang (2003), Vietnamese Dictionary, (9th edition), Da Nang publisher, Da Nang – Ha
Noi, p.909.
52
Quynh, Nguyen Huu (1999), Legal Dictionary, Encyclopedic dictionary publisher, Ha Noi,
p.525.
46

15


labor contract (Articles 38 and 84 of the Labor Code)”53. Also, according to the
book of Legal Terms, "dismissal is a form of handling violations of labor discipline
forcing workers out of the workplace of the business or organization because of
serious mistakes. The dismissed person shall not be entitled to the same regimes
and policies as retired or failed laborers"54. Dismissal can also be determined as
“the form of strictest disciplinary action that is applied to the employer orderly and
legally when the employees commit disciplinary action stated in the company’s
internal labor rules, from which results in the termination of labor relations”55.
Although there is no fixed definition of disciplinary action, Vietnamese law has
clearly defined the procedure for disciplinary dismissal - as a basis for the employer
to legally apply dismissal.

From the definition of both worldwide and Vietnamese dictionary, it can be seen
that dismissal is a permanent termination of employment by removing the employee
from their current workplace due to an employee’s poor performance or noncompliance with company standards.
1.2.2. Characteristics of Disciplinary measure of dismissal and its classification
In addition to the characteristics, characteristics of disciplinary dismissal also carry
the characteristics of the form of labor discipline due to the fact that it is a form of
labor discipline. Therefore, characteristics of disciplinary dismissal also have the
same dismissed subject (employee) and dismissing subject (employer) as well as the
legal basis of violation internal rules. Besides the similarity, dismissal also has its
own features that make it the strictest discipline as:
To begin, legal grounds for dismissal are regulated in the internal rules specified
by the employer based on three grounds stated in the labor law which. In other
words, the employer can only dismiss an employee if that one violated one of the
cases mentioned in the internal rule – which are 3 cases in Article 126 of Labor
Code. During the working hours, only if the employee commits an offense falls into
one of the three stated groups and those acts are specified in the internal labor
53

Institute of Legal Science (2006), Legal dictionary, Encyclopedic Dictionary publisher and
Judicial publisher, p. 427.
54
Hung, Nguyen Manh (2011), Legal Terms, Political of national and truth, publisher, Ha Noi,
p.372.
55
Yen, Nguyen Thi Hoai (2015), Dismissal in Vietnamese Law, Bachelor thesis of Law, Ho Chi
Minh University of Law, Ho Chi Minh City, p.9.

16



regulations that the employer can apply to the form of labor handling for them. As
mentioned: “in a nutshell, this form of discipline is used in the case where it is
necessary to make a healthy working environment as well as to keep order in
workplace”56. In other words, the employer is not allowed to use the form of
dismissal on employees when their behavior is not regulated by the internal rules of
labor. In the process of considering and applying the dismissal, besides complying
with the order and procedures for collective labor discipline in Article 123 of the
Labor Code 2012, the employer must comply with a number of rules of the
following57: when an employer unilaterally terminates the labor contract, transfers
to another job or sacks an employee who is a part-time trade union representative,
he/she must obtain the written agreement of the executive committee of the
grassroots-level trade union or the executive committee of the immediate higherlevel trade union. If failing to reach such agreement, the two parties shall report it to
a competent agency or organization. Only after 30 days after notifying the case to
the local state management agency of labor, may the employer make decision and
he/she shall take responsibility for his/her decision. If disagreeing with the
employer’s decision, the executive committee of the grassroots-level trade union
and the employee concerned may request labor dispute settlement in accordance
with the procedures and order provided by law. In addition, unit employing laborers
shall not unilaterally terminate the labor contract or working contract, dismissal,
enforce to quit or transfer jobs with respect to part-time trade union cadre if the
primary trade union Committee or trade union Committee of directly higher level
had no agreement idea in written. In case of not reaching agreement, two parties
must report to competent agency, organization. The process is within 30 working
days, from of reporting to the competent agency, organization, unit employing
laborers shall be entitled to decide and must be responsible for its such decision.
If employee being part time trade union cadre is terminated labor contract or
working contract, enforce to quit or unlawful dismissal, Trade Union shall require
competent state agencies to interfere; If being authorized, Trade Union may
represent to sue at Court to protect legal rights and interest of such trade union


56

Thu, Nguyen Xuan (2004), Issues to consider when the court considers the legality of dismissal
decisions in industrial relations, People’s Court, Vol.17, p. 29.
57
Labor Code 2012, Section 7, Article 192.

17


cadre; And support to find new job and pay allowances in period of interrupted
work as prescribed by the Vietnam General Confederation of Labor58.
Second, dismissal is the highest form of disciplinary action, which is imposed on
employees who commit serious breaches of discipline. The result of dismissal is the
termination of the employment relationship. Other forms of disciplinary actions
such as reprimand, prolongation of the wage rise period for no more than six
months or removal from office are only applicable in the case of minor violations,
which are not serious enough to terminate the labor relations. They are: “only like
reminders and do not directly affect the material of workers”59. However, where an
employee commits an offense in a manner that is sufficiently serious enough to
threaten or may threaten to cause serious damage to the employer's property or
interests, the law then gives the employers the right to apply discipline forms of
dismissal as a last resort. When dismissal is used, it means that the worker will be
out of work: they will not be paid monthly wages. In addition, their honor and
dignity will also be affected and cause them difficult to find a job in the future.
1.2.3. Distinction between Disciplinary measure of dismissal and unilaterally
terminate the labor contract in accordance with law
Unlike the 1994 Labor Code, the current Labor Code no longer states dismissal as
one of the legal grounds for unilaterally terminating the contract. Although both
cases have similarities: the subject being employed is a wage earner and legal

consequences lead to the termination of the contract. But in legal terms, dismissal is
a remedy that only applies when a worker violates certain regulations. An employer
unilaterally terminates the contract in cases of certain conditions that make the
contract impossible to continue such as natural disasters, fire or force majeure as
prescribed by law or because the employee regularly fails to finish tasks, illness or
the inability to work. However, due to the lack of understanding of the legal nature
of the two legal cases, there are cases where the employer issued the document
without sufficient legal basis or did not comply with legal procedures, which leads
to the result that "in the practice of adjudication of labor cases has been a mistake

58

Law on Trade union (No. 12/2012/QH13) dated 20th June, 2012, Article 25,
Ha, Do Hai and Hai, Tran Hoang (2013), Labor Law, Hong Duc - Vietnam Lawyers Association
Publisher, Ha Noi, p. 392.
59

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