Question 1: Can illegal termination of employment be prosecuted as a crime?

The prevailing Vietnamese Criminal Code states that employers who unlawfully dismiss employees for personal gain or other unjust motives can face criminal charges.

The penalties for such actions vary based on the severity of the offense and may include:

• Fines of up to 200 million VND (approximately 8,000 USD);
• Non-custodial sentences of up to 1 year;
• Imprisonment ranging from 3 months to 3 years.

For instance, if an employer dismisses a pregnant employee for personal gain, they could face imprisonment of up to 3 years.

Question 2: Dismissing an employee involves many personnel.  Who will be charged for this action? Is there any liability imposed on the company as an organization?

Currently, this crime does not apply to organizations. Therefore, individuals involved in illegal dismissal will be held accountable for their actions. This may include the legal representative, HR head, and the person who signed the dismissal decision, etc.

Question 3: What can an employer do to prevent criminal liability risks?

Avoid conducting the illegal dismissal

Vietnamese law protects employees, particularly in regard to job security.  As such, illegal dismissal is treated as a serious offense within the legal framework of Vietnam.  This is evident not only through penal sanctions but also in labor regulations, which require employers to provide various forms of compensation to employees in cases of illegal dismissal.

Consequently, it is advisable for all employers to avoid unlawful dismissal.  To achieve this, employers should first establish and maintain effective and comprehensive internal labor regulations, as these form the basis for labor contract terminations.  Secondly, it is crucial that HR staff or anyone involved in the termination process thoroughly understands the complex procedures mandated by law for terminating a labor contract.

If a labor contract cannot be terminated legally due to insufficient grounds, employers should consider negotiating a mutual termination with the affected employee.  By offering a reasonable compensation package and demonstrating respect for the employee, it is likely that the employee will agree to leave their job voluntarily and amicably.

Carefully evaluate the situation of the employee involved and the response of other staff members

According to the prevailing Vietnamese Criminal Code, whether an illegal dismissal constitutes a crime depends on its consequences.  Therefore, employers must carefully consider the personal circumstances of the employee before proceeding with a dismissal.  In particular, they should avoid terminating the contracts of vulnerable employees, such as those who are facing hardships, who are pregnant, or who are raising a child under 12 months old.  In these situations, offering a compensation package to mutually terminate the labor contract may be a safer option for the employer.

Additionally, employers should pay attention to how other employees react to the dismissal.  While it is not necessary to disclose all details, it is crucial to ensure that the remaining employees do not perceive the dismissal as “unethical” or “unacceptable”.  This concern is especially important for employers with a large workforce, as miscommunication could provoke strong reactions from employees and potentially lead to serious strikes.

Question 4: Are there any other actions by the employer that could lead to criminal liability?

Yes, there are additional actions that employers should pay attention to:

• Failing to fulfill its obligations to participate in the mandatory insurance regime for employees can result in a fine of up to 3 billion VND (approximately 120,000 USD) or imprisonment for up to 7 years.
• Failure to comply with regulations regarding the employment of individuals under 16 years old can lead to imprisonment for up to 12 years if it causes injury, harm to their health, or death.
• Using force, threats, or other coercive measures to compel someone to work against their will can result in imprisonment for up to 12 years if it leads to injury, harm to their health, or death.