| PEOPLE'S PROCURATORATE SUPREME |
SOCIAL REPUBLIC OF VIETNAM Independence - Freedom - Happiness |
| Number: 33/HD-VKSTC | Hanoi, date 08 month 11 year 2022 |
TUTORIAL
SOME BASIC CONTENTS IN THE SUPERVISION OF THE RESOLUTION OF INDIVIDUAL LABOR DISPUTES
Individual labor disputes are disputes concerning the rights, obligations, and interests between an individual employee or a group of employees and an employer, where the parties' objectives are personal in nature. These disputes arise during the establishment, implementation, and termination of labor relations, or from relationships directly related to labor relations. Under the influence of a market economy and international economic integration, many labor disputes have arisen, but individual labor disputes are common. In reality, individual labor disputes are very diverse, and the laws governing their resolution are regulated in many different legal documents. In recent times, the People's Procuratorates at all levels have promptly detected many violations to exercise their rights to request, recommend, and appeal, thereby ensuring that court judgments and decisions on resolving individual labor disputes are issued in accordance with the law and protect the rights and interests of all parties involved in labor relations. However, in practice, supervisory activities in this field still face many difficulties and obstacles that require unified guidance for implementation.
In accordance with the directives of the Supreme People's Procuracy leadership on improving the quality of supervision of the resolution of labor disputes throughout the entire sector, the Supreme People's Procuracy (Department of Supervision of the Resolution of Administrative Cases, Business, Commercial, Labor Cases and Other Matters as Prescribed by Law) provides guidance on some basic contents in the supervision of the resolution of individual labor disputes as follows:
I. MONITORING COMPLIANCE WITH PROCEDURAL LAW AND ITS APPLICATION
1. Regarding the conditions for filing a lawsuit
– The conditions for initiating a lawsuit regarding individual labor disputes are stipulated in Clause 1, Article 188 and Clause 2, Article 219 of the 2019 Labor Code (hereinafter abbreviated as the 2019 Labor Code), and Article 32 of the 2015 Civil Procedure Code (hereinafter abbreviated as the 2015 Civil Procedure Code). When examining this matter, prosecutors and officials need to correctly and fully identify the nature of the labor dispute, and then consider whether the dispute falls under the category requiring mandatory mediation before filing a lawsuit or under the category allowing for litigation in court without mediation.
+ For individual labor disputes as stipulated in points a, b, c, d, e, and f of Clause 1, Article 188 of the 2019 Labor Code, the disputing parties have the right to file a lawsuit requesting the Court to resolve the dispute without being required to go through the mediation procedure.
+ For individual labor disputes that are required to be resolved through mediation by a labor mediator, as stipulated in Clauses 6 and 7 of Article 188 of the 2019 Labor Code, the Court may only accept and resolve the case in the following circumstances:
(i) If, after 05 working days from the date the labor conciliator receives the request from the party requesting dispute resolution or from the specialized labor agency under the People's Committee, the labor conciliator fails to conduct conciliation. In this case, the Prosecutor or civil servant will review the documents and evidence to determine the time the labor conciliator received the request for dispute resolution but failed to resolve it within the prescribed time limit.
(ii) The disputing parties have reached a settlement, but one of the parties fails to implement the agreements recorded in the settlement minutes. In this case, the prosecutor or public official should pay attention to the composition of the mediation participants; the content of the settlement; whether the minutes were read aloud to and signed by all participating parties; whether the content of the agreement complies with or contradicts the law; and documents and evidence showing that one of the disputing parties failed to implement the agreement in the settlement minutes.
(iii) The disputing parties attempted mediation, but the mediation was unsuccessful.
In addition to the cases mentioned above, if the Court accepts and resolves the case when the employer and employee have not gone through the mediation procedure with a labor mediator, it is a violation of the conditions for filing a lawsuit. Therefore, the Prosecutor must request the Court to suspend the case in accordance with point g, clause 1, Article 217 of the 2015 Civil Procedure Code. If the Court does not accept the Prosecutor's opinion but still proceeds with the trial, the Prosecutor should promptly report to the Chief Prosecutor of their level to issue a decision to appeal or report to the Chief Prosecutor of the competent level to issue an appeal or cassation appeal against the Court's judgment or decision.
Example: Mr. H and NP Bank signed an indefinite-term employment contract on March 20, 1996. On September 15, 2014, Mr. H was temporarily suspended from his position as Director by NP Bank according to Decision No. 721/QD-HDTV-UBNS due to numerous violations committed by Mr. H (hereinafter referred to as Decision No. 721/2014).
On January 20, 2015, Mr. H was dismissed from his position as Director by NP Bank because he no longer met the required standards and qualifications to hold the position, as stated in Decision No. 18/QD-HDTV-UBNS (hereinafter referred to as Decision No. 18/2015). Disagreeing with Decision No. 721/2014 and Decision No. 18/2015, Mr. H submitted a request to terminate his employment contract. On September 9, 2015, NP Bank issued Decision No. 123/QD-NHNPK-HCNS terminating Mr. H's employment contract effective September 10, 2015. Subsequently, Mr. H filed a lawsuit requesting the court to annul Decision No. 721/2014 and Decision No. 18/2015, compel NP Bank to compensate for damages and pay wages from September 16, 2014 to September 10, 2015, compel NP Bank to issue a public apology and reinstate him to his position.
The court of first instance hears and resolves the case. "Labor disciplinary disputes in the form of dismissal, claims for unpaid wages, and compensation for damages outside of contractual obligations."The court ruled against Mr. H's lawsuit. Mr. H filed an appeal.
In Labor Appeal Judgment No. 233/2018/LĐ-PT dated February 8, 2018, the Ho Chi Minh City People's Court overturned the first-instance judgment and dismissed the case because the first-instance court had accepted and processed the case before the conditions for filing a lawsuit were met. In this case, Mr. H sued, requesting the court to annul two decisions made during his employment contract period, namely Decision No. 721/2014 and Decision No. 18/2015, and to compel NP Bank to compensate for damages and pay his wages. "Disputes concerning the performance of employment contracts and wages"Based on Article 201 of the 2012 Labor Code (now Clause 1, Article 188 of the 2019 Labor Code) and Clause 1, Article 32 of the Civil Procedure Code, the aforementioned dispute falls under the category requiring mediation by a labor mediator before requesting a court resolution. The fact that the first-instance court accepted and resolved the case without first going through the mediation procedure by a labor mediator constitutes a serious violation of procedural rules.
– Please note that, according to Article 189 of the 2019 Labor Law, the Labor Arbitration Council has the authority to resolve individual labor disputes. When requesting the Labor Arbitration Council to resolve a dispute, the parties may not simultaneously request the Court to resolve the dispute, except in the following cases:
+ If, after the expiration of 07 working days from the date of receiving the request for dispute resolution as stipulated in Clause 1, Article 189 of the 2019 Labor Code, the Labor Arbitration Board is not established.
+ If, after 30 days from the date the Labor Arbitration Board is established, the Labor Arbitration Board has not issued a decision resolving the dispute.
+ A labor arbitration panel has issued a decision to resolve the dispute, but one of the parties has failed to comply with the decision.
2. Regarding the statute of limitations for filing a lawsuit
– The statute of limitations for filing a lawsuit in individual labor disputes is stipulated in Clauses 3 and 4 of Article 190 of the 2019 Labor Code. Accordingly, the statute of limitations for requesting a court to resolve an individual labor dispute is one year from the date of discovery of the act that the disputing party believes violated their legitimate rights and interests. If the party entitled to file a lawsuit can prove that the lawsuit was filed beyond the statute of limitations due to force majeure, objective obstacles, or other reasons as prescribed by law that prevented the plaintiff from filing the lawsuit within the legally prescribed time limit, then the period of force majeure, objective obstacles, or such reasons shall not be included in the statute of limitations.
When examining the statute of limitations for filing a lawsuit, prosecutors and public officials should note that the time limit for filing a lawsuit to request the court to resolve a dispute begins from the moment the disputing party discovers that their legitimate rights and interests have been violated. For example: If an employee receives a dismissal notice after the effective date of the dismissal notice, the statute of limitations for requesting the court to resolve the dispute is calculated from the date the employee receives that dismissal notice.
– In cases where, before requesting the Court to resolve a labor dispute, the parties have requested a labor mediator to conduct mediation (including cases where the labor dispute is not required to go through mediation but the disputing parties agree to choose mediation as the method of dispute resolution) or the disputing parties request an Arbitration Council to resolve the labor dispute but fall under the cases stipulated in Clauses 4 and 5 of Article 189 of the 2019 Labor Code, the statute of limitations for filing a lawsuit is still calculated from the date of discovery of the act that each disputing party believes violated their legitimate rights and interests; it is not calculated from the date of the unsuccessful mediation record by the labor mediator, the expiration date of the mediation period when the labor mediator did not conduct mediation, or from the date the parties failed to implement the agreement in the successful mediation record or the dispute resolution decision of the Labor Arbitration Board (Clause 3, Article 190 of the 2019 Labor Code).
3. Regarding the determination of labor dispute relationships
– Labor relations are diverse and complex, making it difficult to accurately identify the nature of labor disputes in many cases. A single labor case may involve one or more intertwined disputes, and not all parties involved in a lawsuit correctly identify the disputed issues. Accurately and comprehensively identifying the labor dispute is crucial for verifying the court's jurisdiction, scope of proceedings, conditions for filing a lawsuit, documents and evidence to be verified and collected, the parties' legal standing, the applicable legal basis for resolving the case, and the obligation to pay advance court fees and court fees, etc. However, in practice, there are many cases where courts incorrectly identify the dispute, leading to the incorrect application of law in resolving the case, resulting in the annulment or modification of the judgment by a higher court.
Example: Mr. Ngo Van L worked at the production workshop of Company D (hereinafter referred to as Company D) from June 10, 1997, under Labor Contract No. 11/97 dated June 9, 1997. On August 23, 2009, Mr. L presented Company D with a notification of acceptance into the 2009 university-level pharmacy program (integrated training program) at University E and requested Company D to issue a decision to send employees to study. On September 3, 2009, the Director of Company D issued Decision No. 01/QD-CTCPD regarding the sending of employees to study. Mr. L made a commitment that after graduation he would return to work at Company D for at least 10 years. If he broke this commitment, he would have to reimburse all expenses (if any) that Company D had supported him with. In September 2013, Mr. L graduated from university and started working at the production factory on October 1, 2013. In November 2015, Mr. L submitted a resignation letter and Company D agreed. Company D paid Mr. L severance pay based on his current salary of 3.100.000 VND/month, so Mr. L filed a lawsuit requesting the court to order Company D to pay him severance pay based on his current salary of 5.692.000 VND/month plus interest for delayed payment.
Company D filed a counterclaim, demanding that Mr. L reimburse Company D for social insurance, health insurance, and unemployment insurance contributions for the period Mr. L attended university from October 2009 to September 2013, as Mr. L failed to fulfill his commitments.
The first-instance court determined that the dispute between Company D and Mr. L regarding the claim for reimbursement of social insurance, health insurance, and unemployment insurance contributions was as follows: "Disputes over social insurance" and applied Clause 2 of Article 2; Point a, Clause 1 of Article 18 of the Social Insurance Law of 2006 to declare that Company D's counterclaim was rejected. Subsequently, Company D filed an appeal.
In Labor Appeal Judgment No. 23/2017/LĐ-PT dated September 29, 2017, the People's Court of Da Nang Province stated: Company D filed a counterclaim requesting Mr. L to return the social insurance, health insurance, and unemployment insurance contributions that Company D had paid during Mr. L's studies at University E from October 2009 to September 2013, according to the Decision on sending employees for training issued by Company D and the Department of Internal Affairs of Da Nang Province. Therefore, the first-instance court determined the nature of the dispute. "Regarding social insurance" This is incorrect. The appellate court, based on the provisions of Clause 3, Article 62 of the 2012 Labor Code (now Clause 3, Article 62 of the 2019 Labor Code), amended the legal relationship in dispute in the case to: "Disputes over vocational training costs" and declared acceptance of Company D's counterclaim.
– When supervising the court's determination of labor dispute relationships, prosecutors and public officials should note the following:
+ Carefully examine the lawsuit and accompanying documents and evidence regarding the content of the event or legal act that the employee (or employer) believes infringes upon their legitimate rights and interests, and for which they are suing the court for resolution. In addition to the plaintiff's claim, if the case includes a counterclaim from the defendant or an independent claim from a party with related rights and obligations, the prosecutor or public official must conduct a comprehensive study to fully identify all disputed relationships that need to be resolved within the same case.
+ Compare the party's claims with the provisions of civil procedural law, labor law, and relevant legal documents governing the disputed labor relationship to accurately determine the party's claims; the scope of the party's claims must not be expanded or narrowed.
4. Regarding proof and evidence
– Regarding the burden of proof: The employer must prove that they have fulfilled their obligations regarding job security, working conditions, and the rights and benefits of employees as stipulated by law or by agreement; and prove the legality of unilaterally terminating the labor contract and applying disciplinary measures against the employee (Clause b, Point 1, Article 91 of the 2015 Civil Procedure Code). However, if the employer does not acknowledge the unilateral termination of the labor contract and claims that the employee voluntarily abandoned their job or was dismissed for voluntarily abandoning their job, the employee also has the responsibility to prove that their labor contract was unilaterally terminated or that they reported to the workplace as required.
– Regarding the responsibility to provide evidence: If an employee initiating a labor dispute lawsuit fails to provide or submit documents and evidence because those documents and evidence are under the employer's management and custody, the employer is responsible for providing and submitting those documents and evidence to the court. If the employer fails to provide them, or the court has not yet verified or collected them, the Procuracy should issue a document requesting the court to verify and collect the documents and evidence to serve as the basis for resolving the case. For documents provided by only one party and only confirmed by those related to that party, without confirmation from a competent authority or other objective witnesses, the supervisory process must comprehensively and objectively review and evaluate the documents, evidence, and counter-arguments to clarify any contradictions and determine the legality and probative value of the documents provided by the party.
– Please note that prosecutors and public officials must assess the objectivity and legality of the court's collection of documents and evidence in accordance with the 2015 Civil Procedure Code and Resolution No. 04/2012/NQ-HĐTP dated December 3, 2012, of the Council of Judges of the Supreme People's Court. Evidence may be collected from various sources, but it is only considered valid evidence for resolving a case if it meets the requirements of Article 95 of the 2015 Civil Procedure Code. For example:
+ Documents whose content can be read are not considered evidence unless they are originals or legally certified copies, or provided by competent authorities or organizations.
Labor Appeal Judgment No. 21/2017/LĐ-PT dated September 11, 2017, of the People's Court of Dong Nai Province overturned the first-instance labor judgment of the People's Court of B City in the case. "Disputes over training costs in vocational training contracts" In the case between the plaintiff, Ms. Nguyen Thi N, and the defendant, Company U, the first-instance court based its decision on Company U's payroll records (all in a foreign language without notarized Vietnamese translations) provided by Ms. N to accept the plaintiff's claim. Although the payroll records were translated into Vietnamese at the appellate hearing, they were photocopies without official stamps, and the individual payments and expenses shown on the records were not clearly defined. Thus, the first-instance court's collection and evaluation of evidence seriously violated the procedural rules stipulated in Articles 95 and 96 of the 2015 Civil Procedure Code.
+ Electronic data messages, expressed in the form of electronic data exchange such as emails; messages via applications such as Zalo, Viber, Whatsapp, etc., are determined as evidence based on the reliability of the method of creating, storing, or transmitting the data message; the method of ensuring and maintaining the integrity of the data message; the method of identifying the originator; and other relevant factors in the case (Clause 3, Article 95 of the 2015 Civil Procedure Code; Article 14 of the 2005 Law on Electronic Transactions).
5. Regarding advance payment of court fees and labor court fees.
To supervise the collection and exemption of advance court fees and labor court fees by the Court, prosecutors and officials need to accurately and fully identify the content of the dispute in the case. In principle, the plaintiff who files a lawsuit, the defendant who files a counterclaim, and parties with related rights and obligations who file independent claims in a labor dispute case must pay advance court fees. If a party's claim is not accepted by the Court, they must bear the court fees for that rejected claim.
However, according to Clause a, Point 1, Article 12 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the Standing Committee of the National Assembly, which regulates the collection, exemption, reduction, payment, management, and use of court fees and charges, in some cases, employees who file lawsuits demanding wages, unemployment benefits, severance pay, social insurance, compensation for work accidents, occupational diseases, or for compensation for damages or for unlawful dismissal or termination of employment contracts are exempt from paying advance court fees. If the aforementioned lawsuit is not accepted by the court, the employee is also not required to pay court fees.
6. Regarding the application of the law
Clause 1 of Article 156 of the Law on Promulgation of Legal Normative Documents of 2015 stipulates "Legal regulations are applied to actions that occurred at the time the regulation was in effect."Therefore, prosecutors and public officials need to carefully study the documents and evidence regarding the time of signing the labor contract and the time when the dispute arose in the labor relationship to accurately determine the applicable legal regulations to resolve the dispute.
II. MONITORING THE RESOLUTION OF SOME TYPICAL LABOR DISPUTES
1. Disputes over labor disciplinary actions
1.1. Disputes over disciplinary action in the form of dismissal.
– When supervising the resolution of labor disciplinary disputes involving dismissal, prosecutors and public officials need to accurately and fully identify the facts related to the dispute to clarify the grounds for applying the disciplinary measure of dismissal as stipulated in Article 125 of the 2019 Labor Code.
In cases where an employee is dismissed for voluntarily abandoning their job for a cumulative total of 05 days within a 30-day period or 20 days within a 365-day period starting from the first day of unauthorized absence without justifiable reason, the prosecutor or public official shall carefully review the documents and evidence provided by both parties in dispute, the statements of witnesses, or documents and evidence verified and collected by the Court, such as time sheets; data from company access card swipes; data extracted from company cameras, labor regulations, etc., to consider and assess whether the employee voluntarily abandoned their job or whether the employee came to work but was not allowed to enter by the employer. Reason for resignation (if the employee resigns for a legitimate reason such as natural disasters, fires, illness of the employee or a family member with confirmation from an authorized medical facility, and other cases stipulated in the labor regulations, then the employer's dismissal is unfounded).
In cases where an employee commits theft, embezzlement, gambling, intentional injury, drug use, etc., the prosecutor or public official shall examine the documents and evidence proving the violation and the location where the violation occurred, which must be within the scope of the investigation. "at the workplace"If the violation does not occur in the workplace, the employer is not allowed to discipline the employee by dismissing them.
– Review and evaluate the implementation of the principles, procedures, and time limits for disciplinary dismissal by employers as stipulated in Articles 122 and 123 of the 2019 Labor Code, and Article 70 of Government Decree No. 145/2020/ND-CP dated December 14, 2020, detailing and guiding the implementation of some articles of the Labor Code on working conditions and labor relations (hereinafter referred to as Decree No. 145/2020). In practice, there are many cases where employers issue disciplinary dismissal decisions that are well-founded but violate the procedures for disciplinary dismissal, or conversely, the procedures are correct but the grounds for disciplinary dismissal are incorrect, both infringing upon the legitimate rights and interests of employees. Therefore, when overseeing the handling of a case, prosecutors and public officials should not only focus on examining and evaluating the grounds for disciplinary action, but also consider and evaluate the procedures, formalities, and time limits for disciplinary action.
– When there is evidence to confirm that the employer issued a disciplinary decision in the form of dismissal illegally, the prosecutor or public official shall consider the employer's obligations as stipulated in Article 41 of the 2019 Labor Code and Article 73 of Decree No. 145/2020 by examining documents and evidence regarding the employee's specific claims for compensation; the compensation the employee has received and has not received. They shall clarify the period the employee was not allowed to work; the term of employment in the labor contract; the actual start and end dates of the labor contract; whether the employee and employer continued to sign a new labor contract upon expiration; the period of health insurance and unemployment insurance contributions; the employee's actual salary received; the employee's subjective will regarding the request to return to work for the employer, etc.
In cases where a fixed-term employment contract between an employee and an employer has ended before the first-instance court hearing, and the two parties have not agreed to sign a new employment contract, the employer is not obligated to reinstate the employee. Alternatively, if the employee has found new employment and is paying social insurance contributions before filing the lawsuit or before the first-instance court hearing, then... "days when workers are not allowed to work" The provision in Clause 1, Article 41 of the 2019 Labor Code is understood to mean the period up to the date the employee finds a new job.
Example: On August 1, 2016, the Center for Consulting and Providing Population and Family Planning Services of Da Nang City (hereinafter referred to as the Population and Family Planning Center) signed Labor Contract No. 03/HĐLD with Ms. Dang Thi Thuy P, for a term of one year from August 1, 2016 to July 31, 2017. On December 22, 2016, the Population and Family Planning Center issued Decision No. 03/QD-TTTV terminating Ms. P's employment contract effective December 30, 2016, due to her violation of Clause 3, Article 126 of the 2012 Labor Code. Ms. P requested the Court to annul Decision No. 03/QD-TTTV dated December 22, 2016, and for the Population and Family Planning Center to compensate her for damages including salary from January 2017 to October 2019; two months' salary according to the employment contract; social insurance, health insurance, compensation for five days of annual leave, and compensation of 20% of her salary from January 2017 to July 2017, totaling VND 139.178.804. The first-instance and appellate courts ruled that Decision No. 03/QD-TTTV dated December 22, 2016, of the Center for Population and Family Planning was an unlawful dismissal decision, and therefore accepted Ms. P's entire claim for compensation totaling VND 138.212.022.
On September 28, 2020, the Chief Prosecutor of the Supreme People's Procuracy appealed for a review of the labor appellate judgment of the Da Nang City People's Court. In Supervisory Review Decision No. 01/2021/LĐ-GĐT dated September 23, 2021, the Judges' Committee of the Supreme People's Court decided to accept the appeal of the Chief Prosecutor of the Supreme People's Procuracy, partially amending the labor appellate judgment, compelling the Population and Family Planning Center to pay compensation to Ms. P in the amount of VND 30.088.344, because:
The term of employment contract No. 03/HĐLĐ dated August 1, 2016, between Ms. P and the Population and Family Planning Center was from August 1, 2016, to July 31, 2017. However, before the contract expired, Ms. P did not work at the Population and Family Planning Center (from December 26, 2016), and the Center did not renew her employment contract upon its expiration. Therefore, employment contract No. 03/HĐLĐ dated August 1, 2016, automatically expired on July 31, 2017. Therefore, the Center for Population and Family Planning only has to compensate Ms. P for the following amounts due to unlawful dismissal from January 1, 2017 to July 31, 2017 (7 months): a total of VND 30.088.344, including salary during the period Ms. P was not allowed to work (7 months x VND 2.831.400) of VND 19.819.800; compensation for two months' salary (2 x VND 2.831.400) of VND 5.662.800; leave entitlement as per regulations of 5 days (VND 2.831.400: 30 days x 5) of VND 471.900; and social insurance contributions from January 2017 to July 2017 of VND 3.539.250. The health insurance premium from January 2017 to July 2017 (2.831.400 VND x 3% x 7 months) is 594.594 VND.
Ms. P is a fixed-term contract employee, not a civil servant or healthcare official, and does not directly perform medical professional duties. She is not a contract employee under Government Decision No. 58/TTg dated February 3, 1994, and therefore is not eligible for the 20% professional incentive allowance. Furthermore, the Family Planning Center enrolled Ms. P in unemployment insurance when she signed a one-year fixed-term employment contract, so Ms. P is not entitled to severance pay.
1.2. Disputes regarding disciplinary decisions resulting in dismissal.
– According to the provisions of point b, clause 1, Article 29, Article 30, point d, clause 1, Article 52 of the Law on Public Employees 2010, amended and supplemented in 2019; and clause 3, Article 220 of the Labor Code 2019, "official" If a labor lawsuit is filed against a disciplinary decision to dismiss an employee, the case will be accepted and resolved according to civil procedural rules and regulations of labor law and civil servant law. "officer" If a person holding a position from Director General or equivalent downwards sues against a disciplinary decision to dismiss them from their job, the case will be resolved according to administrative litigation procedures.
Therefore, in the supervisory work, prosecutors and public officials rely on documents such as employment contracts and appointment decisions to accurately identify the parties involved in a case. "officer" or "official"This refers to whether the individual is a managerial or non-managerial official. Correctly identifying the person subject to disciplinary action and dismissal is crucial in determining the basis for applying the disciplinary measure, the authority, and the procedures for issuing the disciplinary decision – whether these procedures comply with the law.
Example: Mr. Phan Hoang X is a teacher at K Primary School, B Commune, C District, ST Province. On December 4, 2015, the Chairman of the People's Committee of C District, ST Province, issued Decision No. 1081/QD-UBND regarding disciplinary action against Mr. X; the form of disciplinary action: dismissal; reason: participation in illegal gambling (hereinafter referred to as Decision No. 1081). Disagreeing with the aforementioned dismissal decision, Mr. X filed an administrative lawsuit requesting the Court to annul Decision No. 1081.
The court of first instance accepted the administrative case concerning "Sue a lawsuit against the administrative decision regarding disciplinary dismissal" Between the plaintiff, Mr. X, and the defendant, the Chairman of the People's Committee of District C; and based on Article 30, point d, clause 1, Article 123 of the 2015 Administrative Procedure Law, a decision was issued to suspend the resolution of the aforementioned administrative case. Mr. X filed an appeal.
The appellate court upheld the lower court's decision.
In Supreme Court Review Decision No. 06/2018/HC-GDT dated October 10, 2018, the Council of Judges of the Supreme People's Court overturned the appellate and first-instance judgments and remanded the case back to the first-instance court for retrial in accordance with the law because: according to Article 2 of the 2010 Law on Public Employees, Mr. X is a public employee working at a public service unit under the People's Committee of District C. Decision No. 1081 is not a disciplinary decision to dismiss a public employee, and therefore is not subject to administrative litigation as stipulated in Article 30 of the 2015 Law on Administrative Procedure. Based on point b, clause 1, Article 29, point d, clause 1, Article 52, and Article 30 of the 2010 Law on Public Employees, upon receiving Mr. X's lawsuit, the first-instance court should have instructed Mr. X to file a lawsuit according to civil procedure to resolve the labor case, but the first-instance court accepted and dismissed the case instead. Resolving only the administrative case is contrary to the law. The appellate court's decision to uphold the first-instance judgment is unfounded and affects Mr. X's legitimate rights and interests.
– Determine which case the civil servant is subject to disciplinary action of dismissal falls under, as stipulated in Article 19 of Government Decree 112/2020/ND-CP dated September 18, 2020, on disciplinary action against cadres, civil servants, and public employees (hereinafter referred to as Decree No. 112/2020); the civil servant's violation; the time the violation occurred, the time the violation was discovered; the statute of limitations and time limit for disciplinary action of dismissal. In the case of a managerial civil servant who has already been disciplined with dismissal or a non-managerial civil servant who has been disciplined with a warning and commits a repeat offense, the condition for being considered a repeat offense is that the civil servant committed the first violation and was disciplined, but in the following circumstances... "24-month period" from the date the disciplinary decision in the form of dismissal (for managerial officials) or warning (for officials not holding managerial positions) takes effect. "having committed the same violation".
In cases requiring an assessment of the severity of the violation (causing very serious or exceptionally serious consequences), prosecutors and public officials shall comprehensively review documents and evidence such as the official's self-assessment report, appraisal report, expert opinion, complaint letters, inspection and audit conclusions, press information, etc., to determine the nature, extent, harm (material, political, social), and scope of impact as stipulated in Clause 2, Article 6 of Decree 112/2020.
– Assessing the legality of the authority and procedures for handling disciplinary actions against civil servants.
– If there are grounds to determine that the disciplinary decision to dismiss an employee is unlawful, the prosecutor or public official shall consider the responsibility and obligations of the agency or organization that issued the decision, similar to the guidance for cases of labor disciplinary disputes in the form of dismissal as stated in sub-section 1.1, section 1, Part II of this Guidance.
2. Disputes concerning unilateral termination of employment contracts
2.1. The employer unilaterally terminates the employment contract.
– In cases involving disputes over the unilateral termination of employment contracts by employers, prosecutors and public officials must first determine whether or not the employer unilaterally terminated the contract with the employee. If the employer did not unilaterally terminate the contract, then there is no need to consider the grounds, procedures, and consequences of such unlawful unilateral termination.
Example: Mr. P stated that he and HLT One-Member Limited Liability Company (hereinafter referred to as HLT Company) signed an employment contract on August 1, 2015, with a term of 2 years. After the expiration of the employment contract, on August 1, 2017, Mr. P continued to work at HLT Company. HLT Company did not renew the employment contract but processed the application for a work permit for Mr. P. On March 3, 2018, Mr. P received information that he was being dismissed. HLT Company did not send Mr. P any prior notice, forcing him to hand over his assigned duties and preventing him from entering the company to work. Mr. P filed a lawsuit alleging that HLT Company unilaterally terminated the employment contract illegally and therefore demanded compensation from HLT Company.
The first-instance labor judgment of the Thu Dau Mot City People's Court stated that HLT Company unilaterally terminated the labor contract illegally and accepted Mr. P's compensation claim. Subsequently, HLT Company appealed; the Chief Prosecutor of the Thu Dau Mot City People's Procuracy issued a decision to appeal the judgment.
In Labor Appeal Judgment No. 14/2020/LĐ-PT dated December 24, 2020, the Binh Duong Provincial People's Court ruled in favor of HLT Company's appeal and the objection of the Chief Prosecutor of Thu Dau Mot City People's Procuracy, amending the first-instance labor judgment because, during the case proceedings, Mr. P failed to provide documents and evidence proving that HLT Company terminated his employment contract and prevented him from working on March 3, 2018. Furthermore, Mr. P left the country for China on March 3, 2018, so his claim that HLT Company unilaterally terminated his employment contract illegally on that date is unfounded.
– After determining that the employer has unilaterally terminated the labor contract (either by action or in writing), the prosecutor or public official will focus on researching the grounds for unilateral termination of the labor contract, the notice period the employer must give the employee, and the cases in which the employer is not allowed to unilaterally terminate the labor contract as stipulated in Articles 36 and 37 of the 2019 Labor Code. Note the following cases:
+ Unilateral termination of a labor contract based on the belief that the employee consistently fails to fulfill their duties as stipulated in the labor contract (Clause a, Point 1, Article 36 of the 2019 Labor Code): Prosecutors and public officials determine whether or not there is sufficient evidence to conclude that the employee consistently fails to fulfill their duties. "according to the employment contract" Based on a review of the content of the labor contract or job assignment form, job assignment notice (job description, requirements regarding progress and quality of work); scoring sheets, performance evaluations; commendations and awards; detailed records of unfinished tasks continuously over a certain period; regulations specifying criteria for evaluating the level of work completion; statements from the person concerned and related parties (especially those directly assigned to manage and evaluate the level of work completion of the employee).
+ For unilateral termination of a labor contract under point b, clause 1, Article 36 of the 2019 Labor Code, the prosecutor or public official shall examine documents and evidence regarding the type of labor contract signed; the duration of illness or accident treatment of the employee; and the confirmation results from the competent health authority. "Work capacity has not yet recovered" of the workers.
+ Unilateral termination of employment contract based on the belief that the employee frequently abandons their job without justifiable reason for 05 consecutive working days or more (Clause e, Point 1, Article 36 of the 2019 Labor Code): Prosecutors and public officials shall examine documents and evidence including violation reports; violation warning reports; attendance records; opinions of the company's trade union; data extracted from cameras (if any); and statements of witnesses to determine whether the employer's grounds for unilaterally terminating the employment contract are correct or incorrect.
+ In practice, there are also cases where a fixed-term employment contract expires, but the employee continues working, and within 30 days from the expiration date, the employee and employer have not signed a new contract. Subsequently, due to the inability to agree on the terms for a new contract, the employer unilaterally terminates the original employment contract due to its expiration. The employee then files a lawsuit requesting the annulment of the unilateral termination decision.
In this case, the prosecutor and officials determined that the employer's unilateral termination of the employment contract was unlawful because when a fixed-term employment contract expires and the employee continues to work, the parties must sign a new contract within 30 days from the date the contract expires; during the period before a new contract is signed, the rights, obligations, and benefits of both parties are governed by the existing contract. If the two parties cannot reach an agreement, they must continue to perform the existing contract or agree to terminate the employment contract.
– In cases where the employer unilaterally terminates the labor contract illegally, the prosecutor or public official shall consider the employer's obligations as outlined in the guidelines for disciplinary cases involving dismissal, as stated in sub-section 1.1, section 1, Part II of these Guidelines.
2.2. Employees unilaterally terminate their employment contracts.
– In cases of disputes arising from the unilateral termination of employment contracts by employees, prosecutors and public officials need to study and examine documents and evidence regarding the type of employment contract signed between the employee and the employer; the notice period given by the employee to the employer (in certain cases stipulated in Clause 2, Article 35 of the 2019 Labor Code, the employee has the right to unilaterally terminate the employment contract without prior notice to the employer), thereby determining whether the employee's unilateral termination of the employment contract is in accordance with the law and the responsibilities of each party after the termination of the employment contract.
– According to Clause 1, Article 35 of the 2019 Labor Code and Article 7 of Decree No. 145/2020, employees have the right to unilaterally terminate their labor contract without needing a reason, provided they comply with the obligation to give prior notice to the employer. The notice period is at least 45 days if working under an indefinite-term labor contract; at least 30 days if working under a contract with a term of 12 to 36 months; and at least 03 working days if working under a labor contract with a term of less than 12 months. This applies to specific occupations and jobs such as members of aircraft flight crews; aircraft maintenance technicians, aviation repair technicians; flight dispatchers and operators; enterprise managers as defined by the Enterprise Law and the Law on Management and Use of State Capital Invested in Production and Business Enterprises; and crew members working on Vietnamese ships operating abroad. For seafarers who are subcontracted by Vietnamese businesses to work on foreign ships, the employee must give at least 120 days' notice for indefinite-term contracts or fixed-term contracts of 12 months or more; and at least one-quarter of the contract term for contracts with a term of less than 12 months.
– In cases where an employee unilaterally terminates the labor contract in accordance with the law, the employer is responsible for paying all amounts related to the employee's rights as stipulated in Clause 1, Article 48 of the 2019 Labor Code; completing the procedures for confirming the period of social insurance and unemployment insurance contributions and returning them along with the original copies of other documents if the employer has retained them from the employee.
– In cases where an employee unilaterally terminates their employment contract illegally, they are not entitled to severance pay and must compensate the employer with half a month's salary as stipulated in the employment contract, plus an amount equivalent to the salary for the days without prior notice; and reimburse vocational training costs as stipulated in Articles 40 and 62 of the 2019 Labor Code.
3. Disputes regarding compensation for damages upon termination of employment contracts.
When supervising the handling and resolution of cases concerning compensation for damages upon termination of employment contracts as stipulated in point b, clause 1, Article 32 of the 2015 Civil Procedure Code, prosecutors and officials need to determine the content of the claim for compensation by the parties involved. In cases where the claim is for property damage such as machinery, equipment, workshops, or other physical assets, prosecutors and officials must examine documents and evidence regarding the actual damage incurred; the relationship between the employer's or employee's culpable act and the resulting damage; the extent of the damage; and the responsibility for compensation. To determine the damage and its extent, prosecutors need to request the court to conduct several measures to gather documents and evidence, such as on-site inspections and assessments; and commissioning expert opinions and property valuations.
In cases where compensation for vocational training costs is required upon termination of an employment contract, prosecutors and public officials must carefully examine the validity of the vocational training agreement in the employment contract, training contract, or other written agreement between the employee and the employer; determine whether or not actual training took place to assess the employee's liability for compensation. If the employee violates the commitment regarding working time after training, compensation must be based on the actual training time compared to the training time in the agreement; the committed working time after training and the actual working time; training costs and other expenses, thereby determining the correct amount of compensation.
Example: On May 30, 2017, VT Company and Mr. Ngo Xuan Q signed an employment contract with a term of 3 years (from June 1, 2017 to May 31, 2020); a training contract, with a training period from August 1, 2016 to April 30, 2017 and a training cost of VND 461.500.000, Mr. Q is required to work for VT Company for 3 years from the date of completion of the training course.
On August 27, 2017, Mr. Q submitted his resignation. On September 30, 2017, VT Company issued a decision terminating Mr. Q's employment contract. On May 15, 2018, VT Company filed a lawsuit demanding that Mr. Q compensate them for training contract costs amounting to VND 410.222.000.
The first-instance and appellate courts accepted the validity of the training contract, thereby accepting the lawsuit filed by VT Company and ordering Mr. Q to compensate for training costs in the amount of 410.222.000 VND. Subsequently, Mr. Q filed a petition for cassation review of the labor appellate judgment.
In Supreme Court Review Decision No. 02/2021/LĐ-GĐT dated November 17, 2021, the Supreme Court of Appeal amended the labor appellate judgment, rejecting the lawsuit filed by VT Company because the training period took place before the contract was signed; at the time the training began (August 1, 2016), VT Company did not yet exist (VT Company was established on March 30, 2017), while the contract was effective from the date of signing (May 30, 2017). According to Articles 117 and 124 of the 2015 Civil Code, this constitutes a fictitious civil transaction, therefore the training contract is invalid.
4. Disputes over severance pay
For cases involving disputes over severance pay, prosecutors and public officials need to carefully study the following points:
– Conditions for employees to receive severance pay include: having worked regularly for the employer for at least 12 months when the labor contract is terminated as stipulated in Clauses 1, 2, 3, 4, 6, 7, 9 and 10 of Article 34 of the 2019 Labor Code; not being eligible for retirement benefits as stipulated in Article 169 of the 2019 Labor Code and social insurance laws; and not being in a situation of voluntarily abandoning their job without justifiable reason for 05 consecutive working days or more as stipulated in point e, Clause 1, Article 36 of the 2019 Labor Code.
– Severance pay rates are regulated by Article 46 of the 2019 Labor Code and Article 8 of Decree No. 145/2020, with the following points to note:
+ The working time used to calculate severance pay is the total actual working time of the employee minus the time the employee has participated in unemployment insurance as prescribed by law on unemployment insurance and the working time for which the employee has already received severance pay. The working time used to calculate severance pay is calculated in years (12 months); in cases with odd months less than or equal to 06 months, it is counted as 1/2 year, and in cases with more than 06 months, it is counted as 01 year of work.
+ The salary used to calculate severance pay is the average salary of the 06 consecutive months under the employment contract before the employee terminates their employment (in cases where the employee works for the employer under multiple consecutive employment contracts, the salary used to calculate severance pay is the average salary of the 06 consecutive months under the employment contract before the termination of the last employment contract). In some cases, the court incorrectly determined the salary used to calculate severance pay, leading to the higher court overturning or amending the judgment.
Example: Ms. Le Thi Kim L is an accounting employee working at Garment Company No. 1 in Province C. In January 1997, the company merged with V Import-Export Joint Stock Company (hereinafter referred to as Company V). On November 15, 2016, Ms. L resigned. On December 30, 2016, Company V issued Decision No. 59/QD-XNK dated December 30, 2016, terminating Ms. L's contract. Ms. L claims that the severance pay she was entitled to was VND 62.836.000. Company V has already paid Ms. L VND 3.141.800. Ms. L filed a lawsuit demanding that Company V pay her severance pay in accordance with the law.
The first-instance labor judgment of the People's Court of City V ordered Company V to pay Ms. L the remaining severance pay of 59.614.850 VND. Company V appealed.
In Labor Appeal Judgment No. 04/2018/LĐ-PT dated November 16, 2018, the Appellate People's Court overturned the first-instance judgment because the first-instance court calculated Ms. L's severance pay based on a salary coefficient instead of the average salary under the labor contract for the six consecutive months prior to her termination, violating the provisions of Clause 3, Article 48 of the 2012 Labor Code (now Clause 3, Article 46 of the 2019 Labor Code). Accordingly, Ms. L worked from March 1986 to December 31, 2016. Subtracting the period of unemployment insurance contributions from January 2009 to December 2016, the remaining period was 22 years and 10 months, rounded to 23 years, and her monthly salary in 2016 was 5.186.500 VND. Therefore, the Court of Appeal ruled that Ms. L is entitled to severance pay as follows: 23 years x 5.186.500 VND/year : 2 - 3.141.800 VND (already received) = 56.502.950 VND.
5. Disputes concerning the performance of labor contracts
In cases involving disputes over the performance of labor contracts, prosecutors and public officials need to study and clarify the following points:
– The plaintiff's claim concerns the performance of the concluded employment contract (wages, bonuses, job transfers, workplace transfers, trade secrets, technological secrets, etc.); the plaintiff's specific demands.
– Research the form of labor contract conclusion (written, electronic, or oral); type of labor contract; parties signing the labor contract; validity and legality of the labor contract; collective labor agreement. Through documents and evidence provided by the parties, witnesses, or documents and evidence verified and collected by the Court, the Prosecutor or public official compares the content of commitments and agreements in the labor contract and its appendices (if any) with the actual performance of the contract and the provisions of the law to form a well-founded opinion on resolving the case. In cases where a dispute relates to a labor contract appendix and the content of the agreement in the appendix leads to a different interpretation than the labor contract, the content of the labor contract shall prevail.
– Amendments and supplements to the labor contract between the employee and the employer during the performance of the labor contract; the validity of the amendments and supplements to the labor contract.
– In cases where a labor contract is invalid (partially or wholly), the prosecutor or public official must present their opinion on the consequences of the invalid labor contract in accordance with Article 51 of the 2019 Labor Code; Articles 9, 10, and 11 of Decree No. 145/2020.
The above is a guide to some basic contents in the supervision of the resolution of individual labor disputes. People's Procuratorates at all levels should study and apply this to serve their supervisory work. During implementation, any difficulties or obstacles should be reported to the Supreme People's Procuratorate (through the Department of Supervision of the Resolution of Administrative Cases, Business, Commercial, Labor Cases and other matters as prescribed by law) for clarification and guidance.
Attached to this Guideline is an Appendix containing a number of commonly applied legal documents for supervising the resolution of individual labor disputes./.
APPENDIX
SOME COMMONLY APPLIED LEGAL REGULATIONS FOR RESOLVING INDIVIDUAL LABOR DISPUTES
(Issued together with Guidance Document No. /HD-VKSTC dated …. month …. year 2022 of the Supreme People's Procuracy)
|
DOCUMENT TYPE |
STT |
DOCUMENT TITLE |
EFFECTIVE DATE |
|
Law |
1 |
Labor Code of 2019 |
01/01/2021 |
|
2 |
Civil Code of 2015 |
01/01/2017 |
|
|
3 |
Code of Civil Procedure 2015 |
July 1, 2016 (except for certain provisions effective from January 1, 2017) |
|
|
Luật |
4 |
Law on Public Employees of 2010 (amended and supplemented in 2019) |
01/01/2012 |
|
5 |
Social Insurance Law of 2014 |
01/01/2016 |
|
|
6 |
Health Insurance Law of 2008 (amended and supplemented in 2014) |
01/7/2009 |
|
|
7 |
Employment Law 2013 |
01/01/2015 |
|
|
Resolution |
8 |
Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, of the Standing Committee of the National Assembly stipulates the rates of collection, exemption, reduction, payment, management, and use of court fees and charges. |
01/01/2017 |
|
Decree |
9 |
Government Decree No. 145/2020/ND-CP dated December 14, 2020, provides detailed regulations and guidance on the implementation of several articles of the Labor Code concerning working conditions and labor relations. |
01/02/2021 |
|
10 |
Government Decree No. 152/2020/ND-CP dated December 30, 2020, regulates foreign workers working in Vietnam and the recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam. |
15/02/2021 |
|
|
11 |
Government Decree No. 112/2020/ND-CP dated September 18, 2020, on disciplinary measures for officials, civil servants, and public employees. |
20/9/2020 |
|
|
12 |
Government Decree No. 146/2018/ND-CP dated October 17, 2018, provides detailed regulations and guidance on the implementation of several articles of the Law on Health Insurance. |
01/12/2018 |
|
|
13 |
Government Decree No. 28/2015/ND-CP dated March 12, 2015, provides detailed regulations for the implementation of several articles of the Employment Law regarding unemployment insurance. |
May 1, 2015 (Partially expired) |
|
|
14 |
Government Decree No. 61/2020/ND-CP dated May 29, 2020, amending and supplementing a number of articles of Government Decree No. 28/2015/ND-CP dated March 12, 2015. |
15/7/2020 |
|
|
Circulars |
15 |
Circular No. 10/2020/TT-BLDTBXH dated November 12, 2020, issued by the Ministry of Labour, Invalids and Social Affairs, provides detailed regulations and guidance on several articles of the Labour Code concerning the content of labour contracts, collective bargaining councils, and occupations and jobs that negatively affect reproductive and child-rearing functions. |
01/01/2021 |
|
16 |
Circular No. 11/2020/TT-BLDTBXH dated November 12, 2020, issued by the Ministry of Labour, Invalids and Social Affairs, promulgates the List of strenuous, hazardous, and dangerous occupations and jobs, and especially strenuous, hazardous, and dangerous occupations and jobs. |
01/3/2021 |
|
|
17 |
Circular No. 09/2020/TT-BLDTBXH dated November 12, 2020, issued by the Ministry of Labour, Invalids and Social Affairs, provides detailed regulations and guidance on the implementation of several articles of the Labour Code concerning child labor. |
15/3/2021 |
|
|
18 |
Circular No. 36/2020/TT-BLDTBXH dated December 31, 2021, issued by the Ministry of Labour, Invalids and Social Affairs, stipulates the adjustment rates for monthly wages and income subject to social insurance contributions. |
20/02/2022 |