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Terminate after three warnings In one case before the Council in 2016,
an employee was given written warnings
Get to the point.
One of the things highlighted under Myanmars and later dismissed for creating disorder
Disputes
labor laws is the need to provide three formal at work and disrespecting his supervisor.
warnings before an employer dismisses an Following his dismissal, the employee filed
We provide the ultimate ground advantage for commercial
disputes. Most cases are actually won or lost on the ground,
where the assets are. That is where we come in. Many parties are
employee. Of the three warnings, the first a case at the Conciliation Body. The case
warning must be verbal, followed by two
hesitant to get involved in litigation in the emerging markets
between the employee, the employees as it was proven that the employer had
Cambodia
Indonesia
manager who raised the need for warning, and not given him the first verbal warning. The
Laos
Myanmar
Vietnam
the human resource manager to represent the employer appealed against this judgment
employee so that no prejudice to the employee at the Council, which confirmed the
occurs during the meeting. Meetings must be Arbitration Bodys decision, highlighting
We gain trust with our partners and customers when using VDB
Loi for advice. They are very efficient, knowledgeable and are well
informed especially on telecom, tax and labour laws. Asialaw
documented and it should permit all parties the importance of both verbal and written
to voice their concerns on why the warning is warnings.
https://goo.gl/HfNhqC
Page 1
Profanity at workplace - is it a reason human rights, regardless of a persons
for immediate termination? position, gender or ethnicity. According
Progress report 2016
to section 21(a) of the Settlement
Conventional wisdom may have us of Labor Dispute Law, duties of the myanmar
believe that use of profane or obscene Arbitration Council includes standing
language at workplace could directly and carrying out as the organization
lead to dismissal, but some of the recent which is independent and impartial
labor dispute cases in Myanmar prove based on social justice, decent work and
otherwise. Under Myanmar labor laws, principles of equity in making decisions.
swearing at work is not considered to
be a serious breach of contract, unless To illustrate, one Council case involved
otherwise stated in the employment a disagreement between employees
contract. In other words, employers may that later turned into a physical fight.
find it difficult to dismiss an employee The employer found this to be a
for the sole reason that he or she used serious breach and dismissed one of
obscene language at workplace. PROGRESS REPORT
the employees. The employee filed a
2016
case at the Conciliation Body, which
In a case before the Council, an employee failed to mediate. He then moved to the
was dismissed after he accused his Arbitration Body, which ruled in favor of
Myanmar
supervisor of stealing missing items the employer and rejected his request
from work and used profane language for reinstatement, highlighting that https://goo.gl/jfdQ4U
at workplace. Following this termination, physical fights are a serious breach of
he filed a case against the employer at labor rules in Myanmar. In his third and
the Conciliation Body, which failed to final attempt, the employee moved to who worked at a construction site of
mediate the case. He then appealed the Labor Dispute Arbitration Council, a foreign employer were dismissed
to the Arbitration Body, which ordered which confirmed the Arbitration Bodys without notice or severance pay
his reinstatement, given there was decision on not having to reinstate the for allegedly stealing construction
no proof for use of profane language. employee, but ordered the employer materials. According to employees, they
The employer filed an appeal against to pay severance based on principles of were dismissed because the employer
this judgment at the Council, which social justice and equity. wanted to save on manpower and
confirmed the Arbitration Bodys wage-related costs. Although the lost
decision, but with a promise of the Can you fire employees for economic construction materials were recovered
employee to stop swearing. reasons? a few days later, the employer refused
to reinstate dismissed employees. The
Social justice and equity A slowdown in business activity may conciliation body, where the employees
considerations force employers to lay off some of filed a case against the employer,
their workforce, however, employers in ordered the employer to pay both
Courts in Myanmar uphold principles Myanmar must be careful when taking notice and severance to employees. The
of social justice and equity when such an action. As seen in some of the employer appealed to the Council, which
adjudicating on employer-employee recent cases, dismissal without notice confirmed the lower courts judgment.
disputes, and this often leads to or severance pay solely on economic
judgments deviating from the law. This grounds is mostly deemed unfair, Thou shall not steal
is primarily done with the intention of regardless of the reality of the employers
offering fairness and equal opportunity financial realities. Cases involving embezzlement and
to all parties involved in the case, while theft are taken seriously by Myanmar
protecting and expanding civil and In a recent Council case, four employees courts, and they are often considered
Page 2
Related vDB LOI Publications
to be acceptable reasons for dismissal transfer the amount to one of the security OUR APPROACH
without notice or severance. This is in guards. The employee filed a plaint seeking
contrast to cases involving profanity, severance at the Conciliation Body, from
defamation or vague descriptions of where the case was transferred to the We are a network of leading law and tax advisory firms with
offices in Cambodia, Indonesia, Laos, Myanmar and Vietnam.
being disrespectful, which are not Arbitration Body. Our general areas of practice are corporate, finance and
disputes.
termination under Myanmar labor laws. The Arbitration body ruled in favor of the There are three things you need to know about our approach:
employer and accepted termination without 2. Our quality is trusted by the most discerning.
3. We never give up.
company funds. According to the appealed to the Labor Dispute Arbitration ... commercially creative firm with very high standards. - Legal 500
...widely considered a powerhouse. - Asialaw
Myanmar
Vietnam
employer, this was a serious case of Council, which confirmed this decision.
theft as the employee was supposed to https://goo.gl/EHPmR4
Edwin is a prominent foreign legal advisor living and working U Aye Kyaw is a Myanmar qualified lawyer and the principal of U
in Myanmar since 2012. He frequently advises the Government Aye Kyaw & Associates VDB Loi, a specialized litigation firm which
on privatizations and transactions in the energy, transport and joined VDB Loi in 2014. He is a former judge, magistrate and law
telecommunications areas. He and our Banking team act for lecturer with nearly 25 year experience in civil and commercial
international financial institutions and DFIs, including on their litigation and arbitration. He and his team of litigators have served
largest ever Myanmar financing, and had a role on virtually every clients in a broad range of industries with services since 1990.
completed project financing transaction. In 2016, Edwin and his
team obtained MIC permits for an astounding 25% to 33% of VDB Lois Disputes team comprises Myanmar qualified trial
approved FDI in Myanmar, and helped establish a foreign bank. lawyers, litigators and foreign arbitration specialists (resident
With our firms Energy team, Edwin worked on 5 out of 7 power in Myanmar) who exclusively work on litigation and arbitration
projects signed in 2016, and advised 4 of the supermajors. matters. We focus on a broad range of commercial disputes, labour
Supported by an exclusively dedicated telecom team, he helped cases, construction disputes, insolvency and debt enforcement. In
clients obtain and negotiate Myanmars first new spectrum and 2016, the disputes team booked a significant win when it was able
IGW licenses this year. to secure the release and clear the employee of a foreign state
agency from criminal charges in connection with a fatal accident.