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In the context of economic development and globalization, the issue of determining compensation liability for enterprises when employees commit violations has become increasingly important. This is due to the fact that, as the market economy develops, Vietnamese enterprises are expanding in scale. Many companies manage thousands of employees, with some even reaching tens of thousands across various branches.
The large number of employees inevitably leads to management errors, preventing companies from controlling all employee actions. Thus, in cases where employees voluntarily commit violations without direction from the employer, what are the compensation responsibilities of the enterprise as defined by the Civil Code 2015 No. 91/2015/QH13 (“Civil Code 2015“), and how are these responsibilities determined?
Clarifying compensation liability not only affects the rights of the parties involved but also impacts the reputation and normal operations of the enterprise. The following article will outline the actual state of employee misconduct in the workplace, clarify the basic concepts related to compensation liability, the specific provisions in the Civil Code, and practical applications in labor dispute cases, highlighting the role of enterprises in managing legal risks and protecting the legitimate rights of employees.
Actual State of Employee Misconduct in Enterprises
In May 2023, the South Korean conglomerate Samsung, which specializes in manufacturing and trading consumer electronics and high-tech products—including mobile phones, tablets, televisions, and other electronic devices—issued a ban on all employees across its system, including Samsung Vietnam, from using generative AI tools like ChatGPT, Google Bard, and Bing. This followed an incident where some employees posted confidential company information on ChatGPT to handle work tasks, including product information, meeting minutes, development direction, etc.
These confidential details are currently stored permanently on OpenAI’s servers, which cannot be deleted or retrieved, posing a risk of exposing sensitive information about Samsung’s customers and partners, leading to irreparable damage.
Another typical example in the field of intellectual property occurred when employees of Coca-Cola proactively compiled and offered the secret formula for Coca-Cola to their century-old rival, Pepsi. However, Pepsi not only refused to pay for the formula but also reported the employees to the authorities and strengthened their relationship with Coca-Cola.
Had Pepsi agreed to pay, they could have gained a competitive advantage over Coca-Cola, using various methods to leverage the secret formula, such as launching a similar product under the Pepsi brand or engaging in predatory pricing for Coca-Cola-flavored beverages. The damage could potentially lead to the downfall of a century-old company like Coca-Cola within months.
These two examples have yet to cause any actual loss to the enterprises; they remain hypothetical. However, there are real cases where companies may bear the consequences of employee misconduct in daily activities. A typical example is the frequent use of cracked applications and pirated software among office workers in Vietnam.
The most commonly cracked software is the Microsoft Office suite (Word, Excel, PowerPoint) and permanent activation keys for licensed Windows. These software products are not mandated by the enterprise for employees to install for work; rather, employees choose to do so to enhance their efficiency. In many instances, employees not only use these infringing software for work but also for personal purposes.
This practice not only violates copyright laws but also poses risks to information security, especially in work environments that require high data security standards. The use of unlicensed software may expose sensitive information, damaging the enterprise’s reputation and finances.
Another prevalent example is fraudulent behavior in the banking sector in Vietnam. In the Vạn Thịnh Phát case, investigative authorities received a report detailing that employees of SCB Bank had engaged in deceitful acts, leading customers to purchase bonds or transfer savings from SCB to sign contracts for bond purchases with TVSI Securities Company through deceptive tactics, using terms like “bond savings” and other similar maneuvers.
They did not explain the bond products to customers but rather told them it was a flexible savings option with high interest rates and liquidity, guaranteed by SCB Bank. In reality, this was a guarantee of issuance, not a guarantee of payment, which completely failed to protect customer interests.
Moreover, they did not allow customers to review the bond purchase contracts beforehand, directing customers to transfer money to TVSI Securities’ accounts, only to return the contracts for customers to sign weeks later.
In addition to these cases, countless incidents occur each year where bank employees exploit the bank’s credibility to commit fraud and misappropriate customers’ assets. Many cases result in losses amounting to billions of VND, causing direct harm to customers and undermining public trust in the banking system, thus affecting the business operations of the entire industry.
The current state of employee misconduct in enterprises is causing serious consequences not only for the reputation of the businesses but also for the sustainable development of the economy. Such behaviors can arise from various causes, including work pressure, a lack of strict management, or even a lack of awareness regarding professional ethics.
It is essential for enterprises to proactively establish clear human resources policies, provide ethics and legal training to employees, and mitigate the risks arising from these violations.
Responsibilities of Enterprises When Violations Occur
Due to the misconduct of employees during their work at the enterprise, which is not stipulated in the employment contract signed between the two parties, these actions are unexpected, unpredictable, and cannot be prevented. If there is any compensation liability arising from such violations, it is classified as non-contractual liability for damages.
When employee misconduct results in a need for compensation, there are two main scenarios: the employer may be fully or partially liable for damages, or the employee may bear full or partial responsibility. It is not the case that the employer is automatically liable to compensate for damages in every instance where an employee, working under a contract, causes harm.
Here are some key points regarding the compensation liability that arises when employees commit violations:
1. Actual Damages Must Be Compensated Fully and Promptly
Article 585, Clause 1 of the Civil Code 2015 states: “Actual damages must be compensated fully and promptly. The parties may agree on the level of compensation, the form of compensation in cash, in kind, or by performing a task, in a one-time or multiple installments, unless otherwise stipulated by law.”
This means that all actual damages must be compensated in full, and compensation must be prompt to prevent, limit, and rectify the damage.
Therefore, if an employee’s misconduct during their contract with the enterprise causes damage to another party, the enterprise must bear the liability to compensate the affected party in full and promptly. If the enterprise requires the employee to compensate, that is an agreement between the employee and the employer, unrelated to the affected party.
Article 597 of the Civil Code 2015 stipulates that a legal entity must compensate for damages caused by its personnel while performing tasks assigned by the entity. If the legal entity has compensated for the damages, it has the right to request the person at fault to reimburse the amount according to the law.
In the process of resolving a case, the court may apply one or several provisional emergency measures according to civil procedural law to address urgent requests from the affected party, such as requiring partial advance compensation.
2. Compensation Amounts May Be Reduced
Article 585, Clause 2 of the Civil Code 2015 states: “The person liable for compensation may have the compensation amount reduced if there is no fault or if there is unintentional fault and the damage is too large compared to their economic capability.”
If an employee commits a violation unintentionally or is determined to have no fault, and the employer is unaware of or unable to intervene, or if the employee lacks the financial means to compensate, the compensation amount may be considered for reduction.
For example, if an employee earns 5 million VND per month while the damages they caused amount to several hundred million VND, this amount is too great compared to the employee’s financial capability. If they can prove that, should the court order them to compensate the full damages, they would not have the means to comply, then the compensation amount can be adjusted to be suitable for the employee’s economic condition.
3. Right to Request Changes to the Compensation Amount
Article 585, Clause 3 of the Civil Code 2015 states: “When the compensation amount is no longer suitable to reality, the affected party or the party causing the damage has the right to request the court or another competent state agency to change the compensation amount.”
When the court has issued a decision requiring the liable party to compensate but the compensation amount may no longer be appropriate due to significant changes in the value of the currency used to determine the compensation, such as inflation, deflation, war, or changes in the economic conditions of the liable party, the compensation may need to be adjusted to reflect these changes.
To request an adjustment of the compensation amount, the affected party or the liable party must submit a request for adjustment. The request must be accompanied by relevant documents and evidence supporting the need to change the compensation amount.
4. The Affected Party Will Not Be Compensated for Damages Caused by Their Own Fault
Article 585, Clause 3 of the Civil Code 2015 states: “If the affected party has fault in causing the damage, they will not be compensated for the portion of damage caused by their own fault.”
For example, if an employee of Enterprise A collaborates with an employee of Enterprise B to cause losses to Enterprise B and the court determines that both parties share equal fault (50%), then Enterprise A will only be liable for 50% of the damages to Enterprise B.
5. The Party with Rights or Interests Infringed Will Not Be Compensated if Damages Occur Due to Not Taking Necessary and Reasonable Measures to Prevent or Limit Damage
Article 585, Clause 3 of the Civil Code 2015 states: “The party with rights or interests infringed will not be compensated if the damage occurs due to not taking necessary and reasonable measures to prevent or limit damage to themselves.”
If the affected party knows, anticipates, or has the ability to prevent the damage but allows it to occur without taking action to mitigate it, they will not be entitled to compensation.
For example, if an employee of Enterprise C discusses with Party D about posting information on the ChatGPT platform of OpenAI to assist in work processing, and Party D is fully informed and aware of the potential security risks but fails to intervene or propose changes to the work processing methods, allowing damage to occur, then they will not be compensated for that damage.
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