Available remedies

The employer may consider:

·         terminating the violating employee’s labor contract by way of dismissal; and

·         requesting the violating employee to compensate for damages.

Dismissal

Under the Labor Code 2012, an employer is permitted to apply dismissal as a form of dealing with breach of labor discipline where the employee is guilty of conduct (a) causing serious loss and damage, or (b) which threatens to cause particularly serious loss and damage to property or interests of the employer.

An employee, who breaches the Government’s “Covid-19” regulations such as making inaccurate mandatory medical declaration or avoiding applicable quarantine requirements and is later on tested positive for Covid-19  (the violating employee) may cause material disruption and damages to the employer. In particular,

·         the employer may have to cease operation due to quarantine requirement by the Government;

·         the employer may have to clean the workplace to avoid contamination; and

·         if the employer may have to continue to pay other workers during the shutdown period.

Therefore, it is arguable that an employer could considers dismissing the violating employee on the ground that the violation of Covid-19 regulations could threatens to cause particularly serious loss and damage to property or interests of the employer.

However, the employer may only terminate the labor contract with the violating employee on the above ground if the following conditions are satisfied:

·         the employer has internal labor rules, which reflect the provisions of Labour Code 2012;

·         the employer has evidence of the employee’s violation;

·         the employer has complied with the procedures provided by law for dealing with the employee’s breach;

·         the process to deal with the breach of labor discipline is within the prescribed statute of limitation which is 12 months from the date of violation;  and

·         the employee is not in the circumstances where the employer is not allowed to apply labor discipline measures.

Damages

Regarding compensation for damages, under Article 130 of the Labour Code 2012, an employee who damages tools and/or equipment or whose other conduct causes loss and damage to the assets of the employer must pay compensation in accordance with law. Since the violating employee violates “Covid-19 regulations”, it is unlikely that the violating employee could deny his/her liabilities for damages on the ground that such damages is caused by an epidemic.

This post is written by Nguyen Bich Ngoc and edited by Nguyen Quang Vu.