The dismissal of a department head is an important decision in human resource management within organizations and enterprises, especially in the ever-changing context of the modern work environment. Below, NPLaw invites esteemed readers to explore main legal issues related to the dismissal of department heads.
I. Understanding the dismissal of department heads
The dismissal of a department head refers to the process whereby an organization/ enterprise decides to terminate an individual’s position as department head due to failing to meet qualifications or standards, or for other reasons such as violation of internal rules, underperformance, or misconduct.
Such a process typically involves assessment and consideration of valid grounds, and approval by a competent authority. After dismissal, the dismissed individual may have the right to file a complaint or denunciation if they believe the decision was unfair or infringed upon their personal rights.
II. Legal provisions on the dismissal of department heads
1. Circumstances for the dismissal of department heads
According to Article 5 of Regulation No. 41-QĐ/TW, dismissal of a department head applies in the following cases:
- Receiving a disciplinary warning or reprimand, resulting in having diminished credibility and not being unable to continue in the role;
- Being reprimanded twice or more during the same term or appointment period;
- Receiving more than two-thirds of lowly confident votes during a vote of confidence session;
- Failing to meet performance standards for two consecutive years;
- Being concluded by a competent authority to have recession on political ideology, ethics, or lifestyle;
- Violating political standards as stipulated by Party regulations.
These grounds help determine necessary cases for dismissal to ensure fairness and transparency in personnel decisions within the company.
2. Procedures and processes for the dismissal
According to Articles 8, 9, and 10 of Regulation No. 41-QĐ/TW, the procedures and processes for dismissing a department head include:
- Processes for considering the dismissal or resignation
+ Step 1: Proposal and discussion
When sufficient grounds for dismissal or resignation exist, the competent authority (party committee, party organization, collective leadership, or head of the agency/unit) must directly discuss the matter with the department head and submit a proposal to the competent authority within 10 working days.
+ Step 2: Consideration and decision by the competent authority
The competent authority will review and issue a decision on dismissal or acceptance of resignation within 10 working days. In cases of objective reasons, it may be extended up to 15 working days.
+ Step 3: Implementation of procedures as prescribed
Based on the decision of the competent authority, relevant agencies must implement dismissal or resignation procedures in compliance with State laws, company charter, and operational regulations.
- Dossier required for the dismissal, including:
+ A submission by the advisory agency on personnel matters;
+ Decisions or conclusions by competent authorities, notices, meeting minutes, the department head’s resignation letter (if any), and a report from the employing unit;
+ Other related documents, including reports, evidence, and opinions of concerned parties.
- Job arrangements for the individual after resignation
+ Step 1: Assessing intentions
If the department head wishes to continue working, the competent authority will consider their capacity, ethics, and experience to decide on appropriate reassignment in line with company needs.
+ Step 2: Obtaining potential reappointment or planning
A former department head who has been reassigned, if evaluated positively and shown improvement, may be considered for planning or reappointment to higher positions within the company or nominated for new roles.
3. Resolution of disputes related to the dismissal
When disputes arise over the dismissal of a department head, the resolution process follows Articles 187, 188, and 189 of the Labor Code 2019:
- Conciliation: Before requesting the court or labor arbitration council to resolve the dispute, parties must participate in conciliation by a labor conciliator, within 05 working days.
- Failure to conciliation: The parties may then request the labor arbitration council or court to settle the dispute.
III. Questions on the dismissal of department heads
1. Does an employee have the right to proactively propose stepping down as department head? Who makes the final decision?
Employees have the right to proactively propose resignation from the position of department head. This is based on the freedom basis of labor and the right to resign recognized under Article 5 of the Labor Code 2019, allowing employees to request job changes or resignation if they wish.
However, the final decision on dismissing a department head lies with the employer, as such changes affect the organization and operations of the enterprise. Such a decision must be based on mutual agreement between the parties, involving the employer, and comply with labor law regulations.
2. Is the handover process after dismissal specifically regulated by law or determined by the company?
The handover process following the dismissal of a department head is not specifically regulated by law but is typically governed by the company’s internal regulations or labor rules. However, based on principles of management responsibility and protection of company assets and records, handover is an essential procedure to ensure operational status and avoid disputes. Specifically, under Articles 6 and 12 of the Labor Code 2019, employers have the right to establish and issue internal regulations on handover procedures when there are personnel or position changes, which may detail handover of assets, tasks, and company documents.
Thus, the handover process will follow the company’s internal rules, but fundamental steps such as preparing handover minutes for tasks, assets, and records should be clearly and fully executed to avoid future disputes.
3. What documents must be retained related to the dismissal process to prevent legal disputes?
According to Article 67 of Decree No. 138/2020/NĐ-CP, to prevent legal disputes related to the dismissal process, the following documents must be thoroughly retained:
- The submission from the advisory agency on personnel organization;
- Related documents;
- Meeting minutes and ballot counting records.
Thus, the dismissal process must keep complete records such as the advisory agency’s submission, decisions, meeting minutes, and vote records. These not only ensure compliance with legal requirements but also protect the legitimate rights and interests of involved parties.
4. In what cases can a department head be dismissed under labor laws and company regulations?
Under Article 36 of the Labor Code 2019, a department head may be dismissed in cases such as:
- Frequently failing to fulfill job requirements;
- Being prolonged illness or injury exceeding the contract period without recovery of work capacity;
- Obtaining force majeure reasons;
- Being unjustified absence from work;
- Failing to return to work on time after suspension of the labor contract;
- Providing false information when signing the contract;
- Reaching retirement age without agreement to continue working.
Thus, if a department head falls under any of these circumstances, the employer has full legal grounds to dismiss them.
5. What is the legal procedure for dismissal and what are the employee’s entitlements?
According to Articles 8, 9, and 10 of Regulation No. 41-QĐ/TW, the dismissal process is as follows:
Step 1: Proposal and discussion
- The competent agency (party committee, unit leadership, party organization, or head) determines sufficient grounds for dismissal (due to incompetence, violations, or unsuitability).
- They hold a direct discussion with the department head to clarify reasons for dismissal.
- A dismissal proposal is prepared and sent to the competent authority within 10 working days from when the matter arises.
Step 2: Consideration and decision
- The competent authority receives the dossier, reviews the case comprehensively, and issues a decision on dismissal or acceptance of resignation within 10 working days (or up to 15 days for objective reasons).
Step 3: Administrative implementation
Based on the approved decision:
- Issuing the official dismissal decision from the HR department;
- Updating personnel files and modifying title records;
- Issuing internal notices within the company (if necessary);
- Implementing other procedures in accordance with internal regulations and current laws.
Under Article 68 of Decree No. 138/2020/NĐ-CP, amended by Clause 44, Article 1 of Decree No. 116/2024/NĐ-CP, the regimes and policies for civil servants who resign or are dismissed include:
- For managerial civil servants who resign, if they wish to continue working, they will be assigned duties suitable to their capacity, expertise, qualifications, and current job positions. They are also entitled to retain position allowances until the end of their tenure.
- For those dismissed, they will no longer receive position allowances from the date of the dismissal decision.
- If, after resignation or dismissal, the civil servant voluntarily applies for retirement or termination, it will be processed under prevailing legal provisions.
IV. Legal advisory services on the dismissal of department heads
The above is an article by NPLaw regarding the dismissal of department heads. With a team of experienced lawyers and legal specialists, NPLaw is always ready to accompany, advise, and support clients on all legal issues related to the dismissal of department heads.
