Thông tư 05/1999/TT-TCCP

CIRCULAR

GUIDING THE IMPLEMENTATION OF DECREE No.97/1998/ND-CP OF NOVEMBER 17, 1998 OF THE GOVERNMENT ON HANDLING DISCIPLINE AND MATERIAL RESPONSIBILITY OF PUBLIC EMPLOYEES

In furtherance of Decree No.97/1998/ND-CP of November 17, 1998 of the Government on handling discipline and material responsibility of public employees, the Commission for Organization and Personnel of the Government provides the following guidance for a number of concrete points:

I. GENERAL PROVISIONS

1. The agencies, organizations and units competent to manage public employees as stipulated in Decree No. 97/1998/ND-CP are agencies and organizations that are assigned the responsibility to manage the class of public employees.

2. Public employees on special assignment to work at economic organizations, social organizations and social-professional organizations that have been allocated payroll quotas by competent agencies are allowed to apply Decree 97/1998/ND-CP and this Circular. They comprise:

2.1. Social organizations and social-professional organizations at the central level including 18 associations which are now allocated payroll quotas: the Vietnam Red Cross Society, the Vietnam Journalists Association, the Vietnam Association of the Blind, the Vietnam Stage Artists Association, the Vietnam Plastic Arts Association, the Vietnam Lawyers Association, the Vietnam Folk Arts Association, the Vietnam Architects Association, the Vietnam Cinematography Association, the Vietnam Musicians Association, the Vietnam Photographers Association, the Vietnam Dancers Association, the Vietnam Literary and Arts Union, the Vietnam Union of Scientific and Technical Associations, the Vietnam General Association of Medicine and Pharmacy, the Vietnam Traditional Medicine Association , the Vietnam Writers Association and the Vietnam Culture, Literature and Arts of Ethnic Minorities Association.

2.2. The local social associations and social-professional organizations include four professional organizations at provincial level which are jointly approved by the ministries to receive new wages according to Decree No. 25/CP of May 23, 1993 of the Government, namely: the Vietnam Red Cross Society, the Vietnam Association of the Blind, the Vietnam Traditional Medicine Association and the Vietnam Literature and Arts Union.

3. Persons working on contracts within the payroll quotas of State agencies, organizations and units who take acts in violation of discipline shall be handled according to provisions of the Labor Code and Decree No. 41/CP of July 6, 1995 of the Government detailing and guiding the implementation of a number of articles of the Labor Code on labor discipline and material responsibility.

4. Discipline shall not be taken against public employees violating discipline in the following cases:

4.1. Public employees suffering from mental diseases who are under treatment at mental hospitals or certified as such by mental departments of district and provincial hospitals or hospitals at central level.

4.2. Public employees who have lost their capacity to take cognizance of their acts and are recognized as such by competent medical establishments (district and provincial hospitals or hospitals at central level).

5. Public employees shall not have to pay compensation for damage if they lose or damage equipment and instruments or cause damage to State properties due to force majeure causes, such as natural disasters, fires, enemy sabotage... and certified as such by the employing agency, organization or unit.

6. The maximum statute of limitation to handle violations of discipline is three months after the violation by the public employee is detected, that is after the agency or organization detects the violation or decides to investigate and examine it; the denouncer sends a written denunciation or directly denouncers it to the competent agency, organization or individual as stipulated in Article 57 of the Law on Complaints and Denunciations, or after the agency managing and employing public employee issues a document requesting examination of the offending public employee. In case the violation involves many complicated factors requiring time to investigate and verify, this statute of limitation may be prolonged but not for more than 6 months.

Past the statute of limitation if the offence cannot be substantiated, an end shall be put to the investigation and examination for discipline.

7. Within 12 months after the decision is issued to discipline the public employee, if the latter does not repeat the violation and does not take acts of violation to the point where discipline must be taken, the personnel section of the agency shall report to the head of the competent agency or organization to propose that a decision be issued to terminate the effect of the discipline.

After decision is taken to end the effect of the discipline of lowering the class or the wage grade of the public employee, there shall not be necessarily restoration of the former class and wage level; the consideration whether or not to restore him/her to the former class and wage level rests with the leadership of the competent agency or organization managing the public employee which shall decide each concrete case.

In case of demotion, the reappointment shall conform with the stipulations on the management of officials and public employees of the Communist Party of Vietnam and the State.

8. If the disciplined public employee deems that the discipline is inappropriate, he/she may lodge a complaint against the disciplinary decision against him/her to the competent agency or organization as stipulated in Articles 48, 49, 50 and 51 of the Law on Complaints and Denunciations.

Upon receiving the complaint of the public employee, the competent agency or organization shall have to examine and reply to the concerned person as stipulated in Articles 51, 52, 53, 54 and 55 of the Law on Complaints and Denunciations.

9. In case the decision to discipline or examine a public employee for penal liability has been concluded by the competent agency or organization to be unjust or wrong as stipulated in Article 45 of the Ordinance on Officials and Public Employees, within 30 days at the latest after the agency or organization receives the document of the competent agency, the head of the agency or organization where the public employee works shall have to publicize this decision before all the officials and public employees or before the representatives of officials and public employees (for agencies with a big personnel), and at the same time assign the wrongly disciplined public employee to a class and a wage coefficient equivalent to that in the old class. The time when the public employee is subjected to the wrong decision shall be accounted for when the public employee is considered for wage increase. The compensation for his/her rights and interests shall comply with the stipulations in Decree No. 47/CP of May 3, 1997 of the Government on compensations for damage caused by State officials and public employees and by competent persons of the agency conducting proceedings.

II. HANDLING DISCIPLINE

A.- A NUMBER OF SPECIFIC PRINCIPLES IN DISCIPLINE

1. At the end of the "pre-disciplinary period" for public employees stipulate in Point 4, Article 9 of Decree No. 97/1998/ND-CP of November 17, 1998 of the Government, the agency, organization or unit managing and employing the public employee must inform him/her of the discipline and consider handling the discipline as prescribed by law.

2. The temporary suspension of work of the public employee must be carefully considered and shall be effected only when it is deemed that to let the public employee continue to work may affect or obstruct investigation and conclusion on the case.

3. During the temporary suspension of work, the public employee shall receive an advance pay of 50% of his/her wage and the allowances (if any) at the wage level at the time before suspension of work. More concretely:

3.1. After examination by the agency, organization or unit if the public employee is not disciplined, he/she shall receive the backpay for the remaining wage and allowances (if any). The time of temporary suspension of work shall be accounted as working time for implementation of the regime.

3.2. If the public employee is disciplined, he/she shall not receive the backpay for the remaining wages and allowances (if any). The period of temporary suspension of work and the period up to the time when the discipline decision is taken shall be accounted for as working time for the implementation of the regime but not for the wage raise.

4. During the time of his/her arrest and temporary detention, the public employee shall receive an advance of 50% of the wage and allowances (if any) at the wage level before his/her arrest and temporary detention. After consideration by the court, if the employee is found not guilty and is not subject to administrative sanction, he/she shall receive the backpay for the remaining wage and allowances (if any). The time of his/her arrest and detention shall be accounted for as working time for the implementation of the regime. If he/she is disciplined, he/she shall be handled as stipulated in Point 3.2, Section A, Part II of this Circular.

If the guilty public employee is sentenced to suspended imprisonment or reformation without detention or house arrest, during the period of arrest and temporary detention the public employee shall receive an advance of 50% of his/her wage and allowances (if any) and shall not receive the backpay of the remaining wage and allowances (if any). The period of his/her arrest and provisional detention shall not be accounted as working time for the implementation of the regime.

5. In addition to the cases where the public employee may be forced to stop working according to stipulations in Point 7, Article 12 of Decree No. 97/1998/ND-CP the disciplinary council shall consider and propose the forcible suspension of work for public employees who abandon their work 7 days in a month or 20 days in a year (aggregate) without plausible reason.

Guilty public employees sentenced to prison terms by the court without suspended imprisonment from the day when the verdict or decision takes legal effect shall be automatically forced to stop working.

6. The forms of demotion shall comply with the following principles:

6.1. Demotion from the specialists class which the public employee is holding to an immediate lower class and lowering of the wage level to the wage coefficient corresponding to that of the wage level he/she receives before being disciplined.

Example: Mr. Nguyen Van M holding the class of principal specialist (code number 01002) wage coefficient 3.63 is disciplined in the form of demotion of class. He shall be demoted from the class of principal specialist to the class of specialist (code number 01003) and shall receive wage coefficient 3.56.

6.2. In case the public employee is at the lowest class of the wage scale or at a branch of specialization without a lower class, hence the class demotion form cannot be applied, demotion by a minimum of two wage levels shall be applied.

7. Lowering of wage level shall be effected on the following principles:

7.1. Lowering from the specialization class the public employee is holding to the immediate lower level in the same class.

7.2. If the public employee is holding the wage coefficient of the grade 1 of the specialized class, the time for wage raise shall be prolonged by another term for wage raise in the class, not including the time stipulated in Point 2, Article 6 of Decree No. 97/1998/ND-CP.

Example: Mrs. Nguyen Thi N is holding grade 1 of class teachers of primary education (code number 15114), wage coefficient 1.57 from May 1^st, 1997. In January 1999 she is disciplined in the form of lowering of wage level. She is due to get a wage raise to level 2 on May 1, 2002 if she is not recidivist or does not commit other offences that warrant disciplinary actions.

Example 2: Mr. Tran Van Ha is holding wage level 1 of the specialist class (code number 01003), wage coefficient 1.86 from October 1, 1999. He is disciplined in the form of demotion of grade. He is due to have his wage raised to level 2 on October 1, 2003 if he is not a repeat offender and does not commit other offences that warrant disciplinary actions.

B.- DISCIPLINARY COUNCIL

1. The composition of the Disciplinary Council shall conform to the stipulations in Article 14 of Decree No. 97/1998/ND-CP.

2. In case the head or both the head and deputy head of the agency, organization or unit commit violation of discipline, the head of the higher managing agency shall decide to set up the Disciplinary Council in order to examine and handle the case. The Disciplinary Council shall be composed of:

- The Chairman of the Disciplinary Council is the head or deputy head of the higher managing agency of the agency, organization or unit.

- The representative of the Executive Committee of the Trade Union of the same level.

- The representative of the public employees of the agency, organization or unit where the offender works (designated by the collective of the public employees at the unit).

III. ASSIGNMENT OF RESPONSIBILITIES IN DISCIPLINE

1. For the ministries, ministerial-level agencies and agencies attached to the Government:

1.1. For public employees in the high-grade specialists class and equivalent, after examination by the Disciplinary Council, the case shall be reported to the Minister or the head of the ministerial-level agency, or agency attached to the Government for decision and the report shall be sent to the Commission for Organization and Personnel of the Government for monitoring.

1.2. For public employees in the principal specialists class and equivalent, after examination by the Disciplinary Council, the case shall be reported to the Minister, or the head of the ministerial-level agency, or agency attached to the Government for decision on discipline.

1.3. For public employees of the specialists class and equivalent, the following shall be applied:

1.3.1. For public employees working at general departments, institutes and schools attached to the ministries, ministerial-level agencies and agencies attached to the Government, after examination of the case by the Disciplinary Council, the heads of the above agencies, organizations and units shall issue the decision on discipline. In case the persons are disciplined in the form of class demotion and heavier, after agreement is reached in writing by the Department for Organization and Personnel, the heads of the above agencies, organizations and units shall issue the decision on discipline.

1.3.2. For public employees working at ministerial agencies, ministerial-level agencies and agencies attached to the Government, after examination by the Disciplinary Council, the minister, the head of the ministerial-level agency attached to the Government shall issue the decision on discipline.

1.4. In case the violation of discipline is committed by public employees of the class of clerks and equivalent downward, after examination by the Disciplinary Council, the head of the agency, organization and unit assigned to manage them shall issue the decision on discipline.

2. For the People’s Committees of provinces and cities directly under the Central Government.

2.1. For public employees of the high-grade specialists class and equivalent, after examination by the Disciplinary Council, the case shall be reported to the President of the People’s Committee of the province or city directly under the Central Government for decision, and the report shall be sent to the Commission for Organization and Personnel of the Government for monitoring.

2.2. For public employees of the principal specialists and equivalent class, after examination by the Disciplinary Council, the case shall be reported to the President of the People’s Committee of the province or city directly under the Central Government for issue of the decision on discipline.

2.3. For public employees of the specialists class and equivalent, the following shall be applied:

2.3.1. For public employees disciplined in the form of censure up to wage level lowering, after examination by the Disciplinary Council, the case shall be reported to the director of the service, commission or branch, or the president of the People’s Committee of district, town and city directly attached to the province managing the public employee to issue decision on discipline.

2.3.2. For public employees disciplined in the form of class demotion and heavier, after examination by the Disciplinary Council, the case shall be reported to the director of the Service, Commission or branch or the President of the People'’ Committee of district, town and city directly attached to the province which shall report to the Commission for Administration Organization. Only after reaching agreement with the Commission for Administration Organization of the province or city directly under the Central Government, shall the director of the service, commission, branch and the President of the People’s Committee of the district, township or city directly under the province which manages the public employee issue the decision on discipline.

2.4. For public employees of the class of clerks and equivalent downward who violate discipline, after examination by the Disciplinary Council, the Director of the Service, Commission or branch and the President of the People’s Committee of the district, town and city under the province that manages the public employee shall issue the decision on discipline.

3. The handling of discipline in the form of grade demotion shall be examined by the Disciplinary Council which shall report to the authority competent to appoint public employees to that post in order to issue the decision on discipline.

4. In case the opinion of the disciplinary council differs from that of the person who issues the decision (or the approving agency) and that cannot be reconciled through discussion, the person who issues the decision (or the approving agency) shall decide and take responsibility for its decision.

5. For public employees holding the class of high grade inspector (grade 3) who are disciplined in the form of class demotion and heavier, the ministers, the heads of the ministerial level agencies, the heads of the agencies attached to the Government and the Presidents of the People’s Committees of the provinces and cities directly under the Central Government shall report to the Commission for Organization and Personnel of the Government which shall submit it to the Prime Minster for decision.

IV. ORGANIZATION OF IMPLEMENTATION

1. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the Presidents of the People’s Committees of the provinces and cities directly under the Central Government shall have to implement this Circular.

2. This Circular replaces the following documents:

- Inter-ministerial Circular No. 13/TT-LB of August 30, 1996 explaining and guiding the implementation of the Regulation on labor discipline in State agencies.

- Circular No. 12/LD-TT of May 28, 1977 of the Ministry of Labor on consolidating and strengthening discipline at State agencies.

- Circular No.3/LD-TT of February 20, 1979 of the Ministry of Labor guiding the procedures for the implementation of labor discipline for State workers and public employees.

- Circular No. 13/LD-TT of December 4, 1979 of the Ministry of Labor guiding the implementation of the suspension of work of State officials and employees who commit errors and mistakes.

- Inter-ministerial Circular No.128/TT-LB of July 24, 1969\8 of the Ministry of Finance, the Ministry of Labor and the General Federation of Trade Unions guiding the implementation of the regime of material responsibility of workers and public employees over properties of the State.

3. This Circular takes effect 15 days after its signing.

4. In the course of implementation should any difficulty arise it would be reported to the Commission for Organization and Personnel of the Government for study and settlement.