Checklist for Lawful Dismissal Discipline in Vietnam

Checklist for lawful dismissal: disciplining employees in the right order

This lawful dismissal Vietnam checklist is for employers, HR departments and line managers preparing to discipline an employee by dismissal. Use it from the moment the violation is discovered, ticking each item before moving to the next.

☐ not done
☑ done
⚠ have a lawyer review before proceeding

Important: dismissal ends the employment relationship entirely, so dispute risk is very high. If the case has complex facts, a foreign element, or the employee already has counsel, have a lawyer review the file before issuing the decision.

1. Who this checklist is for and how to use it
2. The detailed checklist
3. Common mistakes when doing this yourself
4. After completing the checklist
5. Frequently asked questions

1. Who this checklist is for and how to use it

☐ not done
☑ done
⚠ have a lawyer review before proceeding

2. The detailed checklist

Item 1: Confirm the conduct falls within dismissal cases under Article 125 ☐

Do: Match the employee's violation against exactly the 4 dismissal cases in Article 125 of the 2019 Labor Code: (1) theft, embezzlement, gambling, intentional injury, drug use at the workplace; (2) disclosing business or technological secrets, infringing the employer's intellectual property causing serious damage or threatening especially serious damage to the employer's assets or interests, or sexual harassment at work as defined in the internal labor regulations; (3) reoffending during an unexpunged disciplinary period of wage-rise deferral or demotion; (4) unauthorized absence for 05 cumulative days within 30 days or 20 cumulative days within 365 days from the first day of absence without legitimate reason.
Why: Dismissal is lawful only in these 4 statutory cases. Courts routinely annul dismissal decisions simply because the conduct did not fall under Article 125.
How: Pull out the company's internal labor regulations, identify which of the 4 cases the conduct falls into, and record the basis in the case file.
Note: The company may not add extra dismissal cases in its internal regulations beyond these 4. If the conduct is serious but not dismissible, consider other disciplinary forms (demotion, wage-rise deferral).

Item 2: Check the conduct is defined in the internal regulations, the labor contract, or the law ☐

Do: Verify the violation is described in the internal labor regulations, agreed in the signed labor contract, or provided for in labor law.
Why: Clause 3, Article 127 prohibits disciplining conduct not defined in the internal regulations, not agreed in the signed labor contract, or not provided for in labor law. This is a "fatal" error that voids the dismissal.
How: Open the issued and effective internal labor regulations and find the clause describing the violation; also check the violator's labor contract for related terms.
Note: The internal regulations must have consulted the grassroots employee representative organization (where one exists) and been communicated to employees before issuance. Regulations "made for show" without proper issuance may be treated as invalid grounds.

Item 3: Check the disciplinary limitation period has not expired ☐

Do: Count the limitation period from the date of the violation to the expected decision date.
Why: Article 123 sets 06 months from the violation date; 12 months for violations directly related to finance, assets, or disclosure of the employer's technological or business secrets. Once expired, no discipline may be imposed.
How: Pin down the exact violation date (discovery date differs from occurrence date — the period runs from occurrence). If the case was under a suspension of proceedings under Clause 4, Article 122 and the period expired or has fewer than 60 days left, the law allows extension of up to 60 days from the end of the suspension.
Note: The disciplinary decision must be issued within the limitation period. Many companies do everything right but issue the decision days after expiry — it is still annulled.

Item 4: Exclude prohibited or suspended cases ☐

Do: Check whether the employee falls within cases where discipline is prohibited or must be suspended, under Clause 4, Article 122 of the 2019 Labor Code.
Why: Disciplining during a prohibited period violates disciplinary principles; the dismissal may be annulled with compensation consequences.
How: Compare the employee's current status against suspension cases: sick leave or convalescence; leave approved by the employer; detention or custody; awaiting investigation or verification results from competent authorities regarding the violation; female employees who are pregnant, on maternity leave, or nursing a child under 12 months; persons with mental illness or other conditions impairing cognition or behavioral control.
Note: The above follows common practical interpretation; before concluding, check the original text or have a lawyer review, especially for female employees and cases awaiting authority verification.

Item 5: Prepare the violation minutes and notify the employee representative organization ☐

Do: Immediately upon discovering the violation, prepare minutes of the violation; simultaneously notify the grassroots employee representative organization of which the employee is a member, and the legal representative of an employee under 15 (if any).
Why: This opens the procedure under Clause 1, Article 70 of Decree 145/2020/ND-CP. Minutes taken at the time of the violation are direct evidence with the highest value in disputes.
How: Record the time, place, witnesses and course of the violation; the minutes-taker and witnesses sign. If the employee refuses to sign, record the reason. Notify the employee representative organization in writing with receipt confirmation.
Note: If the violation is discovered after the fact (e.g., through audits or cameras), collect evidence proving the employee's fault instead of on-the-spot minutes.

Item 6: Collect evidence and prepare to prove fault ☐

Do: Gather full evidence of the violation and the employee's fault: violation minutes, witness statements, images, videos, emails, messages, books, expert conclusions (if any).
Why: Article 122 requires the employer to prove the employee's fault. In disputes the burden of proof lies with the company — unproven fault voids the dismissal.
How: Index evidence by what each proves: the conduct occurred, the employee committed it, it was at fault (intentional or negligent), and the severity or damage. Note each item's source and collection time.
Note: ⚠ Evidence must be lawfully obtained. Evidence gathered by invading the employee's privacy may be excluded. For trade-secret disclosure, prove the information was genuinely protected as a secret under company rules.

Item 7: Consider suspending work if the case is complex ☐

Do: Assess whether to suspend the employee's work during verification.
Why: Where complexity means continued work would hinder verification (e.g., risk of asset dissipation, evidence destruction, witness influence), suspension protects the process and company assets.
How: Under Article 128, suspension requires prior consultation with the grassroots employee representative organization of which the employee is a member. Maximum 15 days, or 90 days in special cases. During suspension the employee receives a 50% advance of the pre-suspension wage. After expiry the employee must be reinstated; if later disciplined, the advance is not returned; if not disciplined, full wages for the suspension period are paid.
Note: Suspension is not a disciplinary form and does not equal dismissal. Abusing prolonged suspension beyond the statutory limit is a violation subject to administrative penalties.

Item 8: Notify the disciplinary hearing at least 05 working days ahead ☐

Do: Send the hearing notice to all required participants, ensuring receipt before the hearing.
Why: This is a hard requirement under Point a, Clause 2, Article 70 of Decree 145/2020/ND-CP. Late notice or missing participants is the most common procedural error voiding dismissals.
How: Notify at least 05 working days before the hearing (working days, not calendar days), stating: content, time and place; the disciplined employee's name; the violation at issue. Recipients: the grassroots employee representative organization, the employee, the employee's defense counsel (a lawyer or another person if requested), and the legal representative of an employee under 15.
Note: Keep proof of sending and receipt (acknowledgments, confirmation emails, delivery minutes). Recipients must confirm attendance; if one side cannot attend at the notified time/place, the parties negotiate a change — failing agreement, the employer decides.

Item 9: Guarantee the employee's right to self-defense ☐

Do: Enable the employee to attend, present views, defend themselves or be defended by a lawyer or the employee representative organization.
Why: Article 122 requires the employee's presence and right to self-defense or defense by a lawyer or another person. Denying defense violates disciplinary principles.
How: State these rights in the hearing notice. At the hearing, give the employee and counsel time to present, submit exculpatory evidence, and record their views fully in the minutes.
Note: For employees under 15, the legal representative must participate. Fully recording defense views not only complies with the law but helps the company reassess the decision's strength before issuance.

Item 10: Conduct the hearing and prepare its minutes ☐

Do: Hold the hearing at the notified time and place; prepare minutes, have them approved and signed by attendees.
Why: The hearing minutes prove the procedure was followed. Missing minutes or missing signatures are fatal weaknesses in litigation.
How: Participants: the employer (or authorized person), the grassroots employee representative organization, the employee and defense counsel (if any). The employer conducts the hearing at the notified time and place even if a participant fails to confirm or is absent. Before closing, the hearing's content must be minuted, approved and signed; for non-signers, the minutes-taker records their name and reason (if any).
Note: Do not hold a sham hearing and backdate minutes. Minutes must reflect reality: who said what, what evidence was presented, the representative organization's views, and the hearing's conclusion.

Item 11: Issue the dismissal decision within the limitation period ☐

Do: Based on the hearing outcome, issue the disciplinary dismissal decision within the Article 123 limitation period.
Why: The decision is the legal instrument ending the employment relationship. A decision issued out of time or without full legal grounds will be annulled.
How: The decision states: employee details; the violation with time and place; legal grounds (internal regulation clauses, Article 125 and related provisions of the 2019 Labor Code, Article 70 of Decree 145/2020/ND-CP); the dismissal form; effective date; the employee's right to complain. The signatory must be the person competent to discipline under the internal regulations (Point i, Clause 2, Article 118 requires the regulations to name this person).
Note: ⚠ The form and procedure for delivering the decision to the employee and notifying the employee representative organization have specific legal requirements — check the original text or have a lawyer review before acting, as this stage is heavily scrutinized in disputes.

Item 12: Archive the entire case file ☐

Do: Collect and systematically archive the full file: violation minutes, evidence, hearing notices with receipt proof, hearing minutes, the disciplinary decision, and related correspondence.
Why: A complete file is the company's shield if the dismissal is challenged months or years later.
How: Organize chronologically with an index; keep both paper and scanned copies; assign custody and retention responsibility.
Note: Retain the file for at least the dispute limitation period — and longer for senior or sensitive cases.

3. Common mistakes when doing this yourself

Mistake 1: Dismissing for conduct outside the 4 Article 125 cases. Many companies add "serious enough for dismissal" conduct to internal regulations — repeated lateness, missed KPIs, conflicts with colleagues. The law does not allow extra dismissal cases — decisions based on them are almost certainly annulled when sued.

Mistake 2: Hearing notice shorter than 05 working days. Confusing working days with calendar days, or sending notice without keeping proof of receipt. One missing day or missing receipt voids the entire hearing procedure.

Mistake 3: No participation by the grassroots employee representative organization. Some companies hold an "internal" meeting between HR and the employee, skipping the representative organization's role. This violates Article 122 principles and directly grounds annulment.

Mistake 4: Acting after the limitation period expired. Cases drag on awaiting verification or superior opinions, then the decision issues after the 06-month (or 12-month) period expired without proper extension. Out-of-time decisions have no validity.

Mistake 5: Using fines or wage cuts instead of labor discipline. Clause 2, Article 127 prohibits fines and wage cuts as substitutes for labor discipline. A company that deducts "penalty" wages and then dismisses for the same conduct creates additional adverse grounds against itself.

4. After completing the checklist

When all 12 items are ticked, the company has a relatively complete, procedurally correct file toward a lawful dismissal decision. But dismissal carries the highest dispute risk in HR management: one small error on limitation, participants or legal grounds can void the decision, triggering compensation duties and reinstatement.

So before issuing the formal dismissal — especially for high-value disputes, senior managers or foreign experts, or complex facts — have a lawyer independently review the whole file one final time. Contact FLAT Law Firm at hotline 0988424851.

5. Frequently asked questions

Can the employer proceed if the employee does not attend the disciplinary hearing?

Yes. Under Article 70 of Decree 145/2020/ND-CP, the employer conducts the hearing at the notified time and place even if a participant fails to confirm attendance or is absent, provided notice was given at least 05 working days in advance and receipt is proven. The employer must still prove proper notification.

How does dismissal differ from unilateral termination of the labor contract?

Dismissal is a form of labor discipline under Article 124 of the 2019 Labor Code — it applies only when the employee's violation falls within the 4 cases in Article 125 and requires the strict procedure in Article 70 of Decree 145/2020/ND-CP. Unilateral termination is each party's right with its own grounds and notice periods. The two differ in nature, grounds and legal consequences.

What if the workplace has no grassroots employee representative organization?

Article 122 of the 2019 Labor Code requires participation of the grassroots employee representative organization of which the employee is a member. Where none exists, the substitute participants and procedure must be determined cautiously under current regulations — have a lawyer review the specific plan before proceeding. Contact FLAT Law Firm at hotline 0988424851.

Is a dismissed employee entitled to severance allowance?

Severance allowance follows Article 46 of the 2019 Labor Code. Termination by disciplinary dismissal (Clause 8, Article 34) has particularities that require checking the original text against each case's facts, so employers should consult a lawyer before deciding to pay or refuse.

Where can an employee complain about an unlawful dismissal decision?

The employee may complain internally and sue at the competent people's court if the disciplinary decision is believed unlawful. When disputes arise, both sides should seek counsel early because limitation periods for labor disputes are limited by law.