Bases for disciplinary dismissal
Question: DTD & Associates LLP let me ask: Company X and I signed a indefinite contract from June 15, 2016. On February 20, 2019, I asked for a leave to take care of my sick mother, but the director of Company X disagreed because of urgent orders for the factory and lack of labor. On February 21, 2019, because my mother was seriously ill and no one was looking after her, I left without permission to take care of her (within 6 working days). After that, company X had a disciplinary meeting in my absence and decided to fire me. So, in my case, is there any basis for company X to apply for dismissal? I sincerely thank you!
Answer: Hello, thank you for trusting and sending your request for legal advice to DTD & Associates LLP. The content of your question has been researched and advised by our team of lawyers as follows:
+ Labor Code issued by the National Assembly dated June 18, 2012
+ Decree No. 148/2018/ND-CP issued by the Government dated October 24, 2018 on amendments to the government’s decree No. 05/2015/ND-CP dated January 12, 2015 on elaboration of some contents of the Labor Code
+ Decree No. 05/2015/NĐ-CP issued by the Government dated January 12, 2015 on elaboration of some contents of the Labor Code
According to the information you provided, on February 20, 2019, you applied for leave to take care of your sick mother but because of urgent orders and lack of labor, Company X did not agree to let you leave. Because your mother was seriously ill and nobody should take care of her, you left on your own from February 21, 2019 and took a break of 6 working days. According to Clause 3, Article 126 of the Labor Code:
“Article 126. Application of dismissal as a form of discipline
Dismissal may be applied by an employer as a form of discipline in the following cases:
3. An employee has been absent from work without permission for a total of 5 working days within 1 month or 20 days within 1 year without plausible reasons.
Plausible reasons include natural disaster, fire, illness of the employee or his/her next of kin with certification by a competent health establishment and other events defined in the internal working regulations.”
Therefore, in order to apply dismissal disciplinary measures in case workers quit their jobs without plausible reason, it must be satisfied two conditions:
+ Violating time off work
+ No justifiable reason
• First: About time off work
Your 6-day leaving without permission has violated the time off according to Clause 13, Article 1 of Decree 148/2018 / ND-CP: “a) The total leave period is 05 working days in up to 01 month (30 days) from the first leave day;”
• Second: About the reason for leaving
Pursuant to Clause 2, Article 31 of Decree No. 05/2015 / ND-CP:
“2. Dismissal may be applied by an employer as a form of discipline for an employee quitting jobs with the following plausible reasons :
b) Illness of employees or their mother, father, adoptive mother, adoptive father, mother-in-law, father-in-law, husband, wife, children or adopted children with certification by a health facility founded and operated as prescribed in law
c) Other cases defined in the labor regulations.”
Accordingly, in case your seriously ill mother was certified by a medical facility, your absence without leave to care for your mother may be considered a legitimate reason. (Note: The medical facility must be founded and operated as prescribed in law.) Therefore, in this case, the dismissal discipline of Company X to you is an insufficient basis.
Conversely, if your mother is seriously ill without a certification by a health facility, it is unreasonable for you to leave work without permission for 6 days to take care of your mother. Therefore, company X may have grounds to fire you.
