Dismissal is the harshest form of labor discipline — it ends the employment relationship immediately. Precisely because it is the harshest, the law imposes the strictest procedures: a single misstep can lead a court to declare the dismissal unlawful, forcing the employer to reinstate the worker and pay compensation. This article sets out the lawful procedure under the 2019 Labor Code and Decree 145/2020/ND-CP.
1. When may an employer apply dismissal?
Under Article 125 of the 2019 Labor Code, dismissal may only be applied in the following cases:
- The employee commits theft, embezzlement, gambling, intentional infliction of injury, or drug use at the workplace;
- The employee discloses business or technological secrets, infringes the employer’s intellectual property rights, causes serious damage or threatens especially serious damage to the employer’s assets or interests, or commits sexual harassment at the workplace as defined in the internal labor rules;
- The employee re-offends while a prior discipline (extended wage-raise deferral or demotion) has not yet been expunged;
- The employee is absent without leave for a cumulative 05 working days within 30 days, or 20 cumulative working days within 365 days from the first day of absence, without a legitimate reason.
Note: these cases must be specified in the company’s registered internal labor rules (Article 119). Dismissing for conduct outside these groups — or not covered by the internal rules — is unlawful dismissal.
2. Mandatory procedure under Article 122 of the 2019 Labor Code
Four mandatory requirements; missing any one puts the disciplinary decision at risk of annulment:
- Proof of fault: the employer must prove the employee’s fault — the burden of proof lies with the company, not the employee;
- Employee representative organization: the grassroots employee representative organization of which the disciplined employee is a member must participate;
- Right to defense: the employee must be present and may defend themselves, or be defended by a lawyer or the employee representative organization; employees under 15 require the participation of their legal representative;
- Written minutes: the entire disciplinary process must be recorded in minutes.
Under Article 70 of Decree 145/2020/ND-CP: when a violation is discovered at the time it occurs, the employer must draw up a violation record and notify the employee representative organization; if discovered afterwards, the employer must collect evidence proving the employee’s fault.
3. Statute of limitations — Article 123
- 06 months from the date the violation occurred;
- 12 months where the violation directly relates to finance, assets, or disclosure of technological or business secrets of the employer;
- If the protected periods (sick leave, detention, pending investigation results, maternity…) expire and the limitation period has lapsed or has fewer than 60 days remaining, it may be extended by up to 60 days;
- The disciplinary decision must be issued within the limitation period — a late decision is unlawful even if its substance is correct.
4. Absolute prohibitions
- No fines or wage deductions as a substitute for labor discipline (Article 127);
- No multiple disciplinary forms for a single violation; for concurrent violations, only the highest form corresponding to the gravest violation applies;
- No discipline while the employee is on sick leave, convalescence; in temporary detention or custody; awaiting investigation results from a competent authority; or for pregnant employees, employees on maternity leave, or nursing children under 12 months (Article 122.4);
- No discipline against employees suffering from mental illness or other conditions depriving them of cognitive or behavioral control.
5. Consequences of a procedurally flawed dismissal
Court practice shows dismissals are frequently declared unlawful where the employer: failed to draw up disciplinary minutes, excluded the employee representative organization, failed to prove fault, or issued the decision after the limitation period. In such cases the employer must reinstate the employee, pay wages and social insurance for the days the employee was not allowed to work, plus compensation of at least 02 months’ contractual salary (Article 41 of the 2019 Labor Code).
6. Frequently asked questions
Q: Is a disciplinary hearing required to dismiss an employee absent without leave for 5 days?
A: Yes. Even where dismissal is permitted under Article 125, the employer must still follow the full Article 122 procedure: proof of fault, participation of the employee representative organization, the employee’s right to defense, and written minutes.
Q: May an employer dismiss a female employee nursing a child under 12 months?
A: No discipline may be imposed during this period (Article 122.4). Discipline is only possible after the child reaches 12 months, if the limitation period remains (extendable by up to 60 days under Article 123).
Q: May a company fine employees for violating internal rules?
A: No. Article 127 strictly prohibits monetary fines or wage deductions in place of labor discipline.
Preparing a dismissal file and need a legal review? Contact us for advice.
Prepared by the FLAW AI Legal Council. This content is pending QA Council review before submission for approval; it is for reference only and does not replace legal advice for your specific situation.
