TEMPORARY SUSPENSION FROM WORK IN LABOR CODE
Topic 32:
TEMPORARY SUSPENSION FROM WORK IN LABOR CODE
MSc. Lường Minh Sơn
SUMMARY OF THE CASE AND COURT DECISION
[Judgment No. 02/2017/LĐ-ST dated June 9, 2017, of the People’s Court of Long Thành District, Đồng Nai Province]
Summary of the Case:
Mr. Trần Văn began working at U.F. Co., Ltd. (abbreviated as U.F. Company) on May 4, 2016, without signing an employment contract. On October 30, 2015, due to the company discovering the loss of surveillance camera data and to facilitate an investigation, U.F. Company issued a decision on November 3, 2015, to temporarily suspend Mr. Trần Văn and Mr. Trần Quý, an IT employee of the company, from work.
Subsequently, from November 9, 2015, to November 26, 2015, U.F. Company sent notices requesting Mr. Trần Văn to return to work, but he did not report to the company. Consequently, on November 30, 2015, U.F. Company issued a decision to revoke the temporary suspension decision regarding Mr. Trần Văn, and on December 1, 2015, the company issued a decision to terminate his employment.
Believing that U.F. Company had unilaterally terminated his employment contract in violation of the law, Mr. Trần Văn initiated a lawsuit. He argued that his failure to return to work was due to his strict compliance with the company’s temporary suspension decision, and he did not accept the notices to return to work because the company had not yet revoked the suspension decision.
Court Decision:
The court rejected Mr. Trần Văn’s claims.
COMMENTARY
I. Introduction
When handling labor discipline matters, as a matter of principle, the law requires the employer to prove the employee’s fault [Point a, Clause 1, Article 122 of the 2019 Labor Code]. However, in practice, proving an employee’s fault is not always straightforward or easily accomplished. At the same time, to ensure a smooth and thorough investigation, allowing the employee to continue working may create difficulties, obstacles, or even lead to the destruction of documents and evidence.
For this reason, the law permits employers to implement the measure of “temporary suspension from work” for employees. This is considered an effective measure to assist employers. In essence, it is not a form of labor discipline sanction but rather a supportive measure for the process of verifying a disciplinary violation [University of Law, Ho Chi Minh City (2022), Labor Law Textbook, op. cit., p. 418].
In Judgment No. 02/2017/LĐ-ST dated June 9, 2017, of the People’s Court of Long Thành District, Đồng Nai Province (hereinafter referred to as “Judgment 02/2017/LĐ-ST”), the court determined: “The company’s issuance of the decision to temporarily suspend Mr. Trần Văn from work was in accordance with Clause 1, Article 129 of the 2012 Labor Code. The law does not mandate that a decision revoking the temporary suspension must be issued before an employee can return to work; it only stipulates the duration of the suspension and the consequences thereof.”
The author finds the court’s reasoning entirely persuasive and believes the ruling aligns appropriately with the provisions of the law.
Specifically, according to the provisions of Article 128 of the 2019 Labor Code (previously regulated under Article 129 of the 2012 Labor Code) regarding temporary suspension from work:
“1. The employer has the right to temporarily suspend an employee from work when the violation involves complex circumstances, and it is deemed that allowing the employee to continue working would hinder the verification process. The temporary suspension of an employee’s work may only be implemented after consulting the grassroots-level employee representative organization of which the employee under consideration for suspension is a member.
- The duration of the temporary suspension must not exceed 15 days, or in special cases, must not exceed 90 days. During the period of temporary suspension, the employee is entitled to an advance of 50% of their salary prior to the suspension. Upon the expiration of the temporary suspension period, the employer must reinstate the employee to work.
- If the employee is subjected to labor discipline, the employee is not required to repay the advanced salary.
- If the employee is not subjected to labor discipline, the employer must pay the employee full salary for the period of temporary suspension.”
II. Legal Issues
- Conditions for Temporary Suspension from Work
The above provisions of the law demonstrate that the law recognizes temporary suspension from work as a right of the employer. Meanwhile, the right to work in accordance with the terms of the employment contract is a right of the employee [Point a, Clause 1, Article 5 of the 2019 Labor Code]. Therefore, to prevent the employer’s temporary suspension from work from adversely affecting the employee’s right to work, certain conditions must be met when implementing such a suspension. Specifically:
(i) Regarding the reason: The basis for an employer to exercise the right to temporarily suspend an employee from work is when the violation involves complex circumstances, and it is determined that allowing the employee to continue working would impede the verification process. However, what constitutes “complex circumstances” has not yet been explicitly recognized or uniformly guided by current law.
(ii) Regarding the duration: Temporary suspension from work can only be applied for a temporary, specified period. In ordinary cases, it must not exceed 15 days, and in special cases, it must not exceed 90 days. Similar to the issue of reasoning, the law has not yet specifically defined what qualifies as a “special case” to justify a suspension of up to 90 days.
(iii) Regarding the issuance procedure: Although temporary suspension from work is a right of the employer, exercising this right requires the employer to consult the grassroots-level collective employee representative organization of which the employee under consideration for suspension is a member. This is a mandatory condition if the employee is a member of such an organization.
In the case under review, the reason, duration, and procedure for the company to temporarily suspend Mr. Trần Văn from work were entirely appropriate and fully compliant with the provisions of the law.
- Form of Exercising the Right to Temporary Suspension
The provisions set forth in Article 128 of the 2019 Labor Code also indicate that current law does not specify a particular form for exercising the employer’s right to temporarily suspend an employee from work. Consequently, this right may be expressed in various forms, such as verbally or in writing. However, to ensure enforceability and to preserve legal evidence, in practice, employers typically issue written decisions.
From a legal perspective, these decisions can also be regarded as written notices intended to inform the employee of the temporary suspension from work for a specified temporary period. Therefore, as correctly noted by the court in Judgment No. 02/2017/LĐ-ST, current law only regulates the reasons, duration, procedure, and consequences of a temporary suspension, without mandating the revocation of the suspension decision.
This implies that if the employer determines that the temporary suspension decision is incorrect, no longer relevant, or would adversely affect business operations more than it would facilitate the verification of the employee’s misconduct, the employer may exercise its discretion to allow the employee to resume work (i.e., by withdrawing the suspension decision or notice). This exercise of discretion can also be carried out in various ways, similar to the manner in which the suspension was initially issued and communicated to the employee.
In the situation under review in Judgment 02/2017/LĐ-ST, after issuing the temporary suspension decision, U.F. Company conducted an internal investigation. Given that Mr. Trần Văn’s role as Deputy General Director overseeing all company operations directly impacted the production and business activities, U.F. Company issued notices requesting Mr. Trần Văn to return to work. Specifically, U.F. Company issued four notices to this effect: Notice No. 34/2015/TB dated November 9, 2015; Notice No. 37/2015/TB dated November 13, 2015; Notice No. 39/2015/TB dated November 18, 2015; and Notice No. 44/2015/TB dated November 26, 2015.
Thus, the fact that U.F. Company did not issue a decision to revoke the temporary suspension but instead issued four consecutive notices to express its intent for the employee to resume work is entirely lawful. This also suggests that the form of issuing the intent to “temporarily suspend from work” and the form of withdrawing or canceling that intent may not necessarily be identical.
- Legal Consequences
According to Article 128 of the 2019 Labor Code, “upon the expiration of the temporary suspension period, the employer must reinstate the employee to work.” As analyzed in Section 2, the end of the temporary suspension period may vary depending on the circumstances. This point in time may be determined by the specific duration stated in the suspension notice or decision, or it may be indicated through any form expressing the employer’s intent to terminate the suspension, such as the notices to return to work issued by the employer in the case at hand.
Once the suspension period ends, the employee is entitled to resume exercising their right to work. Whether labor discipline is imposed depends on compliance with the conditions and principles for handling labor discipline as prescribed by law.
The legal provision stating that “upon the expiration of the temporary suspension period, the employer must reinstate the employee to work” [Paragraph 2, Clause 2, Article 128 of the 2019 Labor Code] underscores that the employee’s right to work must be respected and ensured by the employer. However, it also implies that returning to work is an obligation of the employee. If the employee fails to return to work, it may be deemed as voluntary abandonment of the job or noncompliance with the employer’s management and direction. This, in turn, provides grounds for the employer to unilaterally terminate the employment contract or impose labor discipline on the employee.
Additionally, Article 128 of the 2019 Labor Code addresses the consequences related to salary to safeguard the lawful rights and interests of the employee. Specifically, if the employee is subjected to labor discipline, they are not required to repay the advanced salary; conversely, if the employee is not subjected to labor discipline, the employer must pay the full salary for the period of temporary suspension [Clauses 3 and 4, Article 128 of the 2019 Labor Code].
III. Conclusion
Temporary suspension from work is a measure applied by the employer to an employee under consideration for labor discipline, serving as a supportive mechanism for the disciplinary process. This measure enables the employer to fully exercise their labor management rights. However, when implementing a temporary suspension, the employer must ensure full compliance with the conditions stipulated by law.
Upon the conclusion of the suspension period, whether labor discipline is pursued depends on the investigation’s outcome, as well as the conditions and principles governing labor discipline. Nevertheless, the employee must first and foremost have both the right and the obligation to resume work in accordance with the terms agreed upon in the employment contract. Any violation thereof will be addressed in accordance with legal provisions.
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“The article’s content refers to the regulations that were applicable at the time of its creation and is intended solely for reference purposes. To obtain accurate information, it is advisable to seek the guidance of a consulting lawyer.”
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