A Chinese company wants to dismiss a Vietnamese employee — how to do it lawfully and avoid an unlawful-dismissal ruling that forces reinstatement and compensation? Under Vietnamese law, “dismissal” (sa thải) is the harshest disciplinary measure, applicable only in 04 statutory cases with mandatory procedures. This guide walks through the details.
1. “Dismissal” ≠ Firing at Will
First principle: employers may not terminate at will. “Dismissal” (Article 125, Labor Code 45/2019) is a disciplinary measure applicable only when the employee commits one of 04 acts:
| Case | Content |
|---|---|
| 1 | Theft, embezzlement, gambling, intentional injury, drug use at the workplace |
| 2 | Disclosing the company’s business secrets, technological secrets, or intellectual property |
| 3 | Acts causing or threatening especially serious damage |
| 4 | Recidivism within the limitation period after wage-raise deferral or demotion |
2. Prohibited Cases (Article 127)
Even for violations, the company may not discipline employees who are:
- On sick leave, convalescence, or maternity leave.
- In temporary detention or custody.
- Awaiting investigation conclusions from competent authorities.
3. Mandatory Procedure — One Wrong Step Means Unlawful
- Record the violation (signed by relevant parties).
- Notify the disciplinary hearing at least 05 working days in advance — the employee (or representative), grassroots trade union, and the employee’s lawyer must be present.
- Hold the hearing and prepare minutes.
- Issue the disciplinary decision within the limitation period and deliver it to the employee.
4. Consequences of Unlawful Dismissal (Article 41)
If dismissal lacks proper grounds or procedure:
- The employer must reinstate the employee.
- Pay wages for days the employee was not allowed to work.
- Pay statutory compensation.
5. Distinguishing Termination Forms
| Form | Nature | When to use |
|---|---|---|
| Dismissal | Disciplinary | 04 cases under Article 125 |
| Unilateral termination | Each party’s right | Article 35 (employee) / Article 36 (employer) — grounds + notice |
| Mutual agreement | Consensual | Parties agree on terms |
6. Special Notes for Chinese Companies
- Language barrier: all disciplinary documents must be in Vietnamese; hearing minutes need accurate interpretation.
- Trade union: union representation at the hearing is mandatory — contact the grassroots/upper-level union early.
- Evidence: collect and preserve violation evidence (CCTV, emails, witnesses) before the hearing.
- No “constructive” pressure: pressuring employees to resign voluntarily may be deemed unlawful unilateral termination.
7. Final Payments
On termination: full wage settlement, unused annual leave (Articles 46, 48); severance/job-loss allowances if eligible.
Note: This article summarizes current regulations for reference. Disciplinary action is high-risk — consult a labor lawyer before deciding specific cases.
Transparency: This article was researched and drafted by the AI Legal Council from original legal texts, through independent cross-checking. Content is for reference only and does not replace legal advice from a licensed lawyer.
