Date: 09 March 2021
Writer: Yen Le & Thao Bui
The concept of sexual harassment (“SH”) at the workplace has been stated in the Labor Code 2012, but the regulations were unclear. Now, the Labor Code 2019 (“LC”) has more detailed regulations on SH at work and BLawyers Vietnam will provide some notes as follows:
1. SH at workplace
SH at work is the sexual act of a person towards another person at workplace that such person do not expect or accept. Workplace is any place where the employee works according to agreements with or assignment of the employer.
2. Notable points about SH act at workplace
a. Subject committing the violation act: A person having a work-related relationship with the harassed person. Some common subjects performing SH acts at workplace are: employers, employer’s representatives, business managers, colleagues, customers or partners, etc.
b. Subject of SH at workplace: A person who is directly harassed or affected by the offensive acts of person who commits SH at the workplace, regardless of gender.
c. SH-happening location: Workplace is any place where an employee works according to agreements with or assignment of employer, including work-related locations or spaces such as social events, seminars, trainings, official business trip, meals, phone conversations, electronic communication activities, employer-arranged vehicles from residence to workplace and vice versa, residence provided by the employer, and other location specified by the employer.
d. Identifying signs of SH act at workplace: SH act can occur in the form of an exchange (such as proposing, asking, suggesting, threatening, forcing to exchange of sexual relations for any benefit related to work), or act bearing a sexual nature that are not intended for exchange, but making the work environment uncomfortable and unsafe, causing physical, mental, and work performance harm to the work and life of the person being harassed.
3. Some other notable regulations
a. According to the LC: the prevention of SH at the workplace is addable to the labor regulations along with other contents in accordance with the law. Specifically:
- Not being subject to SH act at the workplace;
- Employee has the right to unilaterally terminate the labor contract without prior notice in case of being subject to SH at the workplace;
- Employer can apply disciplinary dismissal to the employee who commits SH act at the workplace if it is specified in the labor regulations; and
- Prevention of SH act at workplace is one of the contents that parties negotiate for collective labor agreements.
b. According to Decree No. 167/2013/ND-CP on sanctioning of administrative violations: act of “having gestures, words being brutal, provocative, teasing, offending the honor or dignity of others” can be fined up to VND300,000.
c. According to the Penal Code 2015: act of “seriously offend the dignity and honor of others” can be subject to a warning, a fine of from VND10,000,000 to VND30,000,000 or non-custodial probation up to 03 years.
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