LABOR LAW REVIEW JUN + J U L 2 01 8
WORKPLACE INVESTIGATION for labor disciplines
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Contents
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Investigation purpose & Issues should be verified in the investigation
5
Noticeable issues when conducting the investigation
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2
Investigation process
Investigation purpose
&
Issues should be verified in the investigation
3
Investigation purpose Verifying the grounds for labor disciplines.
Issues should be verified in the investigation
The employee’s act must be defined in the internal labor regulations. (Article 128.3, the 2012 Labor Code)
Does the employee’s act violate the internal labor regulations?
How is the employee’s fault for taking such act?
What is the damage caused by the employee’s act?
4
The internal labor regulations must be issued in compliance with the law. (Article 119-120, the 2012 Labor Code; Article 28, Decree No. 05/2015/ND-CP; Article 10.4, Circular No.47/2015/TT-BLDTBXH) •
Being registered with a competent state labor management agency.
•
Having consulted the grassroots-level organization of the employees’ collective.
•
Having notified the employees of the internal labor regulations.
•
Having displayed the internal labor regulations in necessary areas at the workplace.
•
Having submitted the effective internal labor regulations to the provincial-level state labor management agencies where the employer’s branches, units or business/production facilities are located (if the employer has branches, units or business/ production facilities located in many provinces and cities).
representative
The employee’s fault must be proven. (Article 123.1.(a), the 2012 Labor Code) The employee DOES NOT suffer from a mental illness or another illness that deprives him/her of the capacity to perceive or control his/ her act. (Article 123.5, the 2012 Labor Code)
yy
Property
yy
Profit
yy
Health/ Life
yy
Dignity
yy
Prestige
yy
Honor
Noticeable issues when conducting the investigation The period of the investigation must be within the statute of limitations of labor discipline. 06 months --> Normal violations.
Period of investigation Statute of limitations for labor disciplines (Article 124, the 2012 Labor Code) Period of labor discipline
12 months --> Violations directly related to finance, assets or disclosure of technological or business secrets.
Extension of no more than 60 days --> If the statute of limitations expires after the period of that the employee takes sickness or convalescence leave; or a leave with the employer’s consent; or that the employee is kept in custody or temporary detention; or that it is waiting for results of verification and conclusion of a competent agency; or that the female employee is pregnant or on maternity leave; or that the employee is rearing a child under 12 months of age.
Keep information confidential. Execute the confidentiality agreement.
Rights and interests of the employee are preserved. • •
Comply with the labor contract and agreements signed with the employee. Advance 50% of salary to the employee before suspending the employee from working.
Transparency, objectivity, legality. Comply with the mandatory procedures.
5
Investigation process
Tasks should be done after the investigation
Gathering, analyzing, assessing the information, giving investigation conclusion
Collecting evidence
Forming an investigation team
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Forming an investigation team Internal employees (HR, Legal department, Compliance department,…)
Outsourced services
Pros: They know well the rules/ regulations and procedures of the employer’s daily activities, which can facilitate the investigation process.
Pros: Objective, independent.
Cons: They don’t comprehend the rules/regulations and procedures of the employer’s daily activities, so it may prolong the investigation, weaken the confidentiality, increase the employer’s costs.
Cons: Lack of objectivity, independency.
Collecting evidence
Damaged tools, equipment, property Collecting objects considered as evidence must be recorded in written and signed by participants.
Other things considered as evidence
Photos of the scene
OBJECT
Email(s)
Denouncer(s), complainant(s), victim(s)
Collecting testimony recorded in written:
Person seeing the incident happened Colleague(s) in the employee’s department Line manager of the employee Other people involved
Video(s) recording the incident
WITNESS
must
be
- Having the signature of the people giving testimony and other participants. - In case of any person not giving his/ her signature, stating clearly the reason(s) and getting the signatures of at least other 2 witnesses. - The signers clearly confirm their consent and willingness.
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Gathering, analyzing, assessing the information, giving investigation conclusion
Is there any violation of the internal labor regulations?
Is there any recidivism?
What is the grade of discipline corresponding to the violation?
What is the extent of the material responsibility?
What does the employee have to do to remedy the violation?
Involvement of competent authorities in the investigation process?
The competent authorities detect the employee’s act before the employer.
The employer finds it necessary to report the employee’s act to the competent authorities.
SOME ACTS OF THE EMPLOYEE • • • • • • •
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Theft; Embezzlement; Gambling; Intentional infliction of injury; Using of drugs inside the workplace; Disclosure of technological or business secrets, or infringement of intellectual property rights of the employer; Acts which cause serious damage or threaten to cause especially serious damage to the assets or interests of the employer.
During the investigation period taken by the competent authorities
The period of investigation depends on: - The nature of each case. - The investigation agency.
CAN NOT impose the labor discipline on the employee
E.g.: For criminal cases, the investigation period can take 02 months - 20 months (Article 172, the 2015 Criminal Procedure Code).
CAN unilaterally terminate the labor contract.
CAN suspend the employee from working.
Temporarily suspending the employee from working?
The case of violation is complex and any continued performance of the work by the employee can cause difficulties to the verification of his/her violation. Reason
Period of time 15 days – 90 days --> Upon the expiry of suspension period, the employer must reinstate the employee.
Advance 50% of salary to the employee. • If the employee is subjected to the labor discipline: The employee is not required to pay back the advanced salary. • If the employee is not subjected to the labor discipline: The employer must fully pay the salary during the period of suspension to the employee. Salary
Tasks should be done after the investigation
Amend and complete the internal labor regulations (if necessary).
Carry out the labor discipline process.
File all records and documents related to the investigation and labor disciplines.
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