Disciplinary dismissal refers to dismissal on ground of serious misconduct of a worker. Pursuant to Article 74 of the Labor Law, employer cannot dismiss a worker under the undetermined duration contract if he or she does not have a valid reason in relation to worker’s behavior. According to the principle of proportionality between disciplinary measure and magnitude of mistake, only serious misconduct of worker constitutes a valid reason for dismissal. This short article discusses on serious misconduct under the Labor Law of Cambodia.
Serious misconduct is not defined by the Labor Law. However, the Labor Law, Article 83-B, lists down the serious misconducts of worker such as:
1. Stealing, misappropriation, embezzlement;
2. Fraudulent acts committed at the time of signing (presentation of false documentation) or during employment (sabotage, refusal to comply with the terms of the employment contract, divulging professional confidentiality).
3. Serious infractions of disciplinary, safety, and health regulations.
4. Threat, abusive language or assault against the employer or other workers.
5. Inciting other workers to commit serious offenses.
6. Political propaganda, activities or demonstrations in the establishment.
Can employer determine serious misconducts of workers other than those specified in Article 83-B?
The serious misconduct is not limited to those stipulated in Article 83-B above. In addition to the above serious misconducts, the employers may include other serious misconducts in their internal regulations of enterprises or companies. For example, Article 23 provides that internal regulations of the enterprises adapt the general provisions of the Labor Law in accordance with the type of enterprise or establishment and the collective agreements that are relevant to the sector of activity of the aforementioned enterprise or establishment, such as provisions relating to the condition of hiring, calculation and payment of wages and perquisites, benefits in kind, working hours, breaks and holidays, notice periods, health and safety measures for workers, obligations of workers and sanctions that can be imposed on workers. In order to protect the workers, the Labor Law, Article 24, requires that the internal regulations be established by manager of the enterprises after consultation with the workers’ representatives and be visaed by the labor inspector. Furthermore, the Labor Law, Article 27, empowers labor inspector to ensure that any disciplinary sanction imposed in the internal regulations must be proportional to the seriousness of the misconduct.
In addition to protection by means of control of proportionality by the labor inspector, the Labor Law, Article 84, also empowers the Labor Court to determine the magnitude of the offenses other than those included in Article 83-b. In the absence of the Labor Court, the common court has the jurisdiction to determine the serious misconducts other than those in the Labor Law. Therefore, it is understood that even through misconduct is considered as serious misconduct in any provision of the internal regulations; the court, when resolving the dispute over serious misconduct, may override such provision of the internal regulations if the court believes that such misconduct is not serious one.