Updated at 16/11/2022 - 05:10 pm
|Date issued:||08/11/2022||Effective date:||08/11/2022|
|Document Type:||Instructions of the Supreme People's Procuracy||Status:||Still validated|
|SOCIAL REPUBLIC OF VIETNAM|
Independence - Freedom - Happiness
|Number: 33/HD-VKSTC||Hanoi, date 08 month 11 year 2022|
SOME BASIC CONTENTS IN THE SUPERVISION OF THE SETTLEMENT OF PERSONAL LABOR DISPUTES
An individual labor dispute is a dispute over rights, obligations and interests between an individual employee or a group of employees and an employer whose purposes are personal in nature, arising in the process of establishing, performing, terminating an employment relationship or arising from a relationship directly related to the employment relationship. Under the impact of the market economy, international economic integration gives rise to many labor disputes, but most commonly individual labor disputes. In fact, individual labor disputes are very diverse, the law on the content related to the resolution of this type of dispute is governed by many different legal documents. Over the past time, the People's Procuracy at all levels has promptly detected many violations to exercise the right to request, petition and protest, thereby helping the Court's judgments and decisions on the settlement of labor disputes. Personal action is promulgated in accordance with the law, protecting the rights and interests of the parties involved in the labor relationship. However, in reality, supervision activities in this field still have many difficulties and obstacles that need to be guided for consistent implementation.
Following the direction of the leadership of the Supreme People's Procuracy on improving the quality of supervision of the settlement of labor dispute cases in the whole industry, the Supreme People's Procuracy (Procuracy Department) the settlement of administrative cases, business, commercial, labor cases and other matters in accordance with the law) guiding a number of basic contents in the supervision of the settlement of dispute cases. personal labor disputes as follows:
I. SUPERVISION OF COMPLIANCE WITH THE PROCEDURES LAW AND APPLICATION OF LAW
1. About the conditions for initiating a lawsuit
– Conditions for initiating an individual labor dispute case are specified in Clause 1, Article 188, Clause 2, Article 219 of the Labor Code 2019 (hereinafter referred to as the Labor Code 2019), Article 32 of the Civil Procedure Code. 2015 (hereinafter abbreviated as CPC 2015). When inspecting this content, procurators and civil servants need to correctly and fully determine the labor dispute relationship, thereby considering whether the dispute is a case that must go through the conciliation procedure before initiating a lawsuit or falling under the law. the case is initiated at the Court without going through the conciliation procedure.
+ For individual labor disputes specified at Points a, b, c, d, dd, e, Clause 1, Article 188 of the Labor Code 2019, the disputing parties have the right to initiate a lawsuit to request the Court to settle without forcing required to go through mediation.
+ For individual labor disputes that must be resolved through the conciliation procedure of the labor conciliator, according to the provisions of Clauses 6 and 7, Article 188 of the Labor Code 2019, the Court can only accept, settle the case in the following cases:
(i) The expiration of 05 working days from the date on which the labor mediator receives a request from the party requesting the settlement of the dispute or from the specialized labor agency of the People's Committee, which the mediator sends labor does not conduct mediation. In this case, the procurator and civil servant study documents and evidences to determine the time when the labor mediator has received the request for dispute settlement but failed to settle it on time.
(ii) The disputing parties have successfully conciliated but one of the parties has not implemented the agreements recorded in the minutes of successful conciliation. In this case, procurators and civil servants should pay attention to the participants in the mediation; content of successful mediation; whether the minutes are approved for the parties to hear and jointly sign the minutes; the content of the agreement is in accordance with the provisions of law or contrary to the provisions of law; documents and evidence showing that one of the disputing parties did not comply with the agreement in the minutes of conciliation.
(iii) The disputing parties have conciliated but the conciliation is unsuccessful.
In addition to the above cases, if the Court accepts and settles the case when the employer and the employee have not approved the conciliation procedure of the labor conciliator, it is a violation of the lawsuit conditions. Therefore, the procurator must request the court to suspend the settlement of the case according to the provisions of point g, clause 1, article 217 of the 2015 Civil Code. In case the court does not accept the point of view of the procuracy but still brings the case to court. When adjudicating the trial, the procurator should promptly report to the Chief Procurator of the People's Procuracy at his/her level for promulgation of the decision on appellate protest or to request the head of the competent procuracy to issue an appellate protest; cassation review of court judgments and decisions.
Example: Mr. H and NP Bank signed an indefinite-term labor contract on March 20, 3. On September 1996, 15, Mr. H was suspended from the position of Director by NP Bank under Decision No. 9/QD-HDTV-UBNS on the grounds that Mr. H had many violations (hereinafter referred to as Decision No. 2014 for short). 721).
On January 20, 01, Mr. H was dismissed from the position of Director by NP Bank because Mr. H was no longer trusted and qualified to hold the position of Director in Decision No. 2015/QD-HDTV-UBNS (later later). hereinafter referred to as Decision No. 18/18). Disagreeing with Decision No. 2015/721 and Decision No. 2014/18, Mr. H made an application to terminate the labor contract. On September 2015, 09, NP Bank issued Decision No. 9/QD-NHNPK-HCN on the termination of the labor contract with Mr. H from September 2015, 123. After that, Mr. H filed a lawsuit to ask the Court to cancel Decision No. 10/9 and Decision No. 2015/721, forcing NP Bank to compensate for damage and pay salary from September 2014, 18 to September 2015. 16, forcing NP Bank to publicly apologize and reinstate its position.
The first-instance court accepts and settles the case “Disputes regarding labor discipline in the form of dismissal, wage demands and non-contractual damages”, the judgment did not accept the petition of Mr. H. Mr. H made an appeal.
In the Appellate Labor Judgment No. 233/2018/LD-PT dated February 08, 02, the People's Court of Ho Chi Minh City canceled the first-instance judgment and suspended the settlement of the case because the first-instance court accepted and resolved the case. the case when there are not enough conditions to initiate a lawsuit. In this case, Mr. H filed a lawsuit asking the Court to cancel two decisions arising during Mr. H's performance of the labor contract, Decision No. 2018/721 and Decision No. 2014/18, forcing NP Bank to pay compensation. Usually damages and wage payments are “Disputes over performance of labor contracts and wages”. Pursuant to Article 201 of the 2012 Labor Code (now Clause 1, Article 188 of the 2019 Labor Code), and Clause 1, Article 32 of the CPC, the above-mentioned dispute falls under the circumstances that must go through the conciliation procedure of the labor mediator before asking the Court. handle. The fact that the first-instance Court accepts and settles the case without going through the conciliation procedures of the labor mediator is a serious violation of the procedural procedures.
– Note, according to the provisions of Article 189 of the Labor Code 2019, the Labor Arbitration Council has the authority to settle individual labor disputes. When requesting the Labor Arbitration Council to settle a dispute, the parties may not concurrently request the Court to settle the dispute, except for some of the following cases:
+ Within 07 working days from the date of receipt of the request for dispute settlement as prescribed in Clause 1, Article 189 of the Labor Code 2019, the Labor Arbitration Board is not established.
+ After 30 days from the date of establishment of the Labor Arbitration Board, the Labor Arbitration Board has not issued a decision to settle the dispute.
+ There has been a decision to settle the dispute of the Labor Arbitration Board but one of the parties has not implemented the decision.
2. About the statute of limitations for lawsuits
– The statute of limitations for initiating an individual labor dispute case is specified in Clauses 3 and 4, Article 190 of the 2019 Labor Code. Accordingly, the statute of limitations for requesting the Court to settle an individual labor dispute is 01 year from the date of application. the date of discovering the act in which the disputing party believes that his/her legitimate rights and interests are violated. If the subject has the right to initiate a lawsuit, it can prove that the time limit for initiating a lawsuit is overdue due to force majeure events, objective obstacles or other reasons as prescribed by law that prevent the plaintiff from carrying out the lawsuit. within the statutory time limit, the time of force majeure events, objective obstacles or such reasons shall not be included in the statute of limitations for initiating lawsuits.
When inspecting the statute of limitations for initiating lawsuits, procurators and civil servants should note the determination of the time limit for calculating the statute of limitations for initiating lawsuits to request the Court to settle disputes, starting from the time the disputing parties discover their legitimate rights and interests. own is violated. For example: If an employee receives a dismissal decision after the effective date of the dismissal decision, the statute of limitations for requesting a court to settle the dispute is counted from the date the employee receives such dismissal decision.
– For the case before asking the Court to settle the labor dispute, the parties have requested the labor mediator to conduct conciliation (including the case where the labor dispute is not required to go through conciliation procedures). but the disputing parties agree to choose to settle the dispute according to conciliation procedures) or the disputing parties request the arbitration council to settle the labor dispute but fall into the cases specified in Clauses 4 and 5 of this Article. 189 Labor Code of 2019, the statute of limitations for initiating lawsuits is still counted from the date of discovering acts in which each disputing party believes that his/her legitimate rights and interests are violated; Not counting from the date on which the labor conciliator's unsuccessful conciliation minutes is issued, the conciliation expiration date, but the labor conciliator fails to conduct conciliation or not from the date the parties fail to implement the agreement in the conciliation minutes. successfully resolved, the dispute settlement decision of the Labor Arbitration Board (Clause 3, Article 190 of the Labor Code 2019).
3. Regarding the determination of labor dispute relations
- Labor relations are very diverse and complicated, so it is difficult to accurately determine the labor dispute relationship in many cases. In a labor case, there may be one or many conflicting relationships that need to be resolved, and not all involved parties when making a lawsuit also correctly identify the dispute. The correct and complete determination of the labor dispute relationship has an important meaning in the supervision of the Court's jurisdiction to settle the case and the scope of the trial; conditions for initiating lawsuits; documents and evidences to be verified and collected; the litigants' procedural status; the legal basis to be applied to settle the case and the obligation to pay the court fee advance, the court fee, etc. However, in reality, there are many cases where the Court misidentifies the dispute relationship leading to the application. The case was not properly handled by the law, and the judgment was annulled or corrected by the superior court.
Example: Mr. Ngo Van L has worked at the production workshop of Joint Stock Company D (hereinafter referred to as Company D) from June 10, 6 according to Labor Contract No. 1997/11 dated June 97/ 09. On August 6, 1997, Mr. L presented to Company D the notice of admission to the university of pharmacy education at the address of University E in 23 and requested Company D to issue a decision to appoint staff and workers. students go to school. On September 8, 2009, the Director of Company D issued Decision No. 2009/QD-CTCPD on sending officials and employees to study. Mr. L makes a commitment that after graduation, he will return to work at Company D for at least 03 years. ) that Company D supports Mr. L. In September 9, Mr. L graduated from university and has worked at the factory since October 2009, 01. In November 10, Mr. L applied for leave and was accepted by Company D. Company D pays the severance allowance to Mr. L at the salary of 9 VND/month, so Mr. L sues to ask the Court to settle and force Company D to pay the severance allowance according to Mr. L's current salary. enjoy is 2013 VND/month and interest due to late payment.
Company D has a counter-claim, asking Mr. L to refund to Company D social insurance, health insurance and unemployment insurance money during the time Mr. L attends university from October 10 to October 2009. September 9 due to Mr. L's failure to fulfill his commitment.
The first instance court determined that the dispute between Company D and Mr. L regarding the claim for refund of social insurance, health insurance and unemployment insurance was “disputes over social insurance” and apply Clause 2, Article 2; Point a, Clause 1, Article 18 of the Law on Social Insurance in 2006 to declare not to accept the counterclaim of Company D. After that, Company D has an appeal.
In the Appellate Labor Judgment No. 23/2017/LD-PT dated September 29, 09, the People's Court of DN province stated: Company D has filed a counterclaim requesting Mr. L to return the social insurance and medical insurance money. In fact, unemployment insurance was paid by Company D during Mr. L's time studying at University E from October 2017 to September 10 according to the Company's decision to send employees to train. D and the Department of Home Affairs of the province of DN, the first instance court determined the dispute relationship “about social insurance” 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), revised the disputed legal relationship in the case as follows: “dispute over vocational training costs” and accept the counterclaim of Company D.
When supervising the determination of the labor dispute relationship of the Court, procurators and civil servants should note:
+ Carefully study the lawsuit petition and accompanying documents and evidence about the content of the event or legal act that the employee (or the employer) believes that such event or act infringes on the rights, their legitimate interests and they sue to ask the Court to settle. In addition to the plaintiff's request, if the case has a counterclaim of the defendant, an independent claim of a person with related interests and obligations, the procurator or civil servant must conduct a comprehensive study and review to determine fully determine the dispute relationships to be resolved in the same case.
+ Compare the claims of the involved parties with the provisions of the civil procedure law, the labor law and relevant legal documents governing the disputed labor relationship to determine the correct requirements. of the litigant, must not widen or narrow the scope of the litigant's request.
4. About proof and evidence
– Regarding the burden of proof: The employer must prove that he/she has properly performed the obligations regarding job security, working conditions and the employee benefits and regimes as prescribed by law or by agreement; prove the legitimacy when unilaterally terminating the labor contract, applying labor discipline sanctions against the employee (point b, clause 1, Article 91 of the Civil Code 2015). However, in case the employer does not acknowledge the unilateral termination of the labor contract, but thinks that the employee voluntarily quits the job or the employee is fired for voluntarily quitting, the employee Employees are also responsible for proving that they have been unilaterally terminated their labor contracts or that they have come to the workplace in accordance with regulations.
– Regarding the responsibility to provide evidence: The employee initiates a personal labor dispute case for failure to provide or hand over documents and evidences for the reason that such documents and evidences are being submitted by the employer. management and storage, the employer is responsible for providing and handing over such documents and evidences to the Court. If the employer does not provide it or the Court has not verified and collected it, the Procuracy needs to issue a written request to the Court to verify and collect documents and evidences to serve as a basis for settling the case. . For documents provided by only one involved party and only certified by relevant persons on that party's side, without certification by competent authorities or other objective witnesses, the process The procuratorate needs to consider and evaluate comprehensively and objectively documents, evidences and critical opinions to clarify points of contradiction, thereby determining the legitimacy and probative value of documents provided by the applicant.
– Note, Procurators and civil servants must assess the objectivity and lawfulness of the Court's collection of documents and evidence in accordance with the 2015 Civil Code and Resolution No. 04/2012/NQ- City Council dated December 03, 12 of the Council of Judges of the Supreme People's Court. Evidence can be collected from many different sources, but it is only considered as evidence to solve the case if it meets the provisions of Article 2012 of the 95 Civil Code, for example:
A readable document is not considered evidence if it is not the original or a legally notarized or authenticated copy or is provided by a competent agency or organization.
The appellate labor judgment No. 21/2017/LD-PT dated September 11, 9 of the People's Court of DN province canceled the first-instance labor judgment of the People's Court of City B adjudicating the case. “Training cost dispute in vocational training contract” between the plaintiff, Mrs. Nguyen Thi N, and the defendant, Company U, because the first-instance Court relied on the payrolls of Company U (both in foreign languages without a notarized Vietnamese translation, notarized or certified). actual) provided by Ms. N to accept the plaintiff's claim. Although at the appellate court, the salary sheets were translated into Vietnamese, but they are all photocopies, without stamps, each payment and expense shown on the payroll has not been clarified. Thus, the collection and assessment of evidence by the first-instance Court seriously violated the procedural procedures specified in Articles 95 and 96 of the 2015 Civil Code.
+ Electronic data messages are expressed in the form of electronic data exchange such as e-mail; messages via applications such as Zalo, Viber, Whatsapp, etc., are identified as evidence based on the reliability of the way of creating, storing or transmitting data messages; how to ensure and maintain the integrity of data messages; the method of determining the originator and other relevant factors in the case (Clause 3, Article 95 of the Civil Code 2015; Article 14 of the Law on Electronic Transactions 2005).
5. Regarding the advance of court fees and labor costs
In order to supervise the collection and exemption of court cost advances and labor costs by the Court, procurators and civil servants need to correctly and fully determine the content of the dispute in the case. In principle, plaintiffs who request to initiate lawsuits, defendants who have counterclaims, persons with related interests and obligations who have independent claims in a labor dispute case must pay court fee advances. In case the involved parties' requests are not accepted by the Court, they must bear the court costs for such unacceptable requests.
However, according to the provisions of Point a, Clause 1, Article 12 of Resolution No. 326/2016/UBTVQH14 dated December 30, 12 of the National Assembly Standing Committee, stipulating the rates of collection, exemption, reduction, collection, payment and management and using court fees and court fees, in some cases, workers sue for wages, job loss allowances, severance allowances, social insurance, compensation for occupational accidents and diseases. In case of being fired or terminating the labor contract illegally, they are exempt from paying court fee advances. If the worker's above-mentioned petition is not accepted by the Court, he or she will not have to pay the court fee.
6. About the application of the law
Clause 1, Article 156 of the 2015 Law on Promulgation of Legal Documents stipulates: "Legal documents are applicable to acts occurring at the time that such document is in effect". Therefore, prosecutors and civil servants need to carefully study documents and evidences about the time of signing the labor contract and the time when disputes arise in the labor relationship to accurately determine the legal documents. applicable law to resolve the dispute.
II. SUPERVISION OF THE SETTLEMENT OF SOME TYPICAL LABOR DISPUTES CASE
1. Disputes dealing with labor discipline
1.1. Disputes regarding labor discipline in the form of dismissal
- When supervising the settlement of the labor discipline dispute resolution in the form of dismissal, the procurator and civil servant should correctly and fully determine the circumstances related to the content of the dispute to clarify the grounds. just apply the form of disciplinary dismissal according to the provisions of Article 125 of the Labor Code 2019.
In case the employee is disciplined for dismissal due to voluntarily quitting work for 05 cumulative days within 30 days or 20 cumulative days within 365 days from the first day of voluntarily quitting without any For legitimate reasons, the procurator and civil servant shall carefully study documents and evidence provided by both disputing parties, the testimony of witnesses or documents and evidences verified and collected by the Court. as timesheets; data of swiping cards from entering and leaving the company; data extracted from cameras in the company, labor rules, etc. to consider and evaluate employees who voluntarily quit their jobs or employees who come to work but the employer does not allow them to work. ; reasons for leaving work (if the employee leaves for a legitimate reason such as natural disaster, fire, himself or his or her family member being sick, certified by a competent medical examination and treatment facility, and other cases prescribed by law). In the labor regulations, the dismissal of the employer is groundless).
In case employees commit acts of theft, embezzlement, gambling, intentionally causing injury, using drugs, etc., prosecutors and civil servants shall review documents and evidences proving violations and the place where the violation occurs must be within the scope of “at work”. In case the violation does not occur at the workplace, the employer is not allowed to handle the labor discipline in the form of dismissal for the employee.
- Review and evaluate the employer's implementation of the principles, order, procedures and statute of limitations for disciplinary handling of dismissal according to the provisions of Article 122, Article 123 of the Labor Code 2019, Article 70 of Decree No. 145/2020/ND-CP dated December 14, 12 of the Government detailing and guiding the implementation of a number of articles of the Labor Code on labor conditions and labor relations (hereinafter referred to as Decree No. Decree No. 2020/145). In fact, there are many cases where the employer issued a disciplinary decision on dismissal but violated the order and procedures for disciplining dismissal or vice versa. Disciplinary handling procedures for dismissal are correct but the grounds for disciplining dismissal are incorrect, infringing upon the legitimate rights and interests of employees. Therefore, when supervising the settlement of cases, procurators and civil servants not only focus on considering and evaluating the grounds, but must also consider and evaluate the order, procedures, and statute of limitations for handling cases. discipline.
- When there are grounds to affirm that the employer has issued a decision on disciplinary action against the employee in the form of illegal dismissal, the procurator and civil servant shall consider the employer's obligation to comply with the law. current according to the provisions of Article 41 of the Labor Code 2019; Article 73 of Decree No. 145/2020 approving the study of documents and evidences on the specific claims of workers for damage; compensation that workers have received and have not yet received. Clarify the time employees are not allowed to work; labor term in the labor contract; the actual start and end time of the labor contract; whether the employee and the employer continue to sign a new labor contract when the contract expires; the period of payment of health insurance and unemployment insurance; the salary actually received by the employee, the subjective will of the employee about the request to return to work for the employer, etc.
In case the definite-term labor contract between the employee and the employer has ended before the first-instance trial by the Court, but the two parties do not agree to sign a new labor contract, the employer shall employees are not obliged to accept employees back to work. Or if the employee has a new job and pays social insurance premiums before filing a lawsuit or before the first-instance trial, the “days when workers are not allowed to work” The provisions of Clause 1, Article 41 of the Labor Code 2019 are understood as the date the employee has a new job.
For example: On August 01, 8, the Center for Civil and Family Planning Services and Consulting Center of Danang City (hereinafter referred to as the Center for Family Planning and Family Planning) signed a Labor Contract No. 2016/HDLD with Ms. Dang. Thi Thuy P, a term of 03 year from August 01, 01 to July 8, 2016. On December 31, 7, the Center for Population and Family Planning issued Decision No. 2017/QD-TTTV on terminating the labor contract with Ms. P, from December 22, 12 due to Ms. P's violation of Clause 2016. Article 03 of the 30 Labor Code, Ms. P requested the Court to cancel Decision No. 12/QD-TTTV dated December 2016, 3 and that the Center for Population and Family Planning must compensate for damage including salary from January 126 to October/October. 2012; 03 months salary according to the labor contract; social insurance money, health insurance money, compensation for 22 days of annual leave, 12% compensation with salary from January 2016 to July 01 with a total amount of 2017 VND. The first-instance and appellate courts decided that Decision No. 10/QD-TTTV dated December 2019, 02 of the Center for Family Planning and Family Planning was an illegal dismissal decision, thereby accepting the entire claim of Ms. with a total amount of 05 VND.
On September 28, 9, the Chief Procurator of the Senior People's Procuracy protested through cassation against the appellate labor judgment of the People's Court of Danang City. In the cassation decision No. 2020/01/LD-GDT dated September 2021, 23, the Judges Committee of the High People's Court decided to accept the protest of the Procurator of the High People's Procuracy and partially amend the appellate labor judgment. , forcing the Center for Population and Family Planning to pay compensation to Ms. P in the amount of VND 9, because:
The term in the Labor Contract No. 03/HDLD dated August 01, 8 of Ms. P with the Center for Population and Family Planning starts from August 2016, 01 to July 8, 2016. However, when the labor contract has not expired, Ms. P does not work at the Center for Population and Family Planning (since December 31, 7) and the Center for Population and Family Planning also does not continue to sign labor contracts with her. Ms. P when the labor contract expires. Therefore, the Labor Contract No. 2017/HDLD dated August 26, 12 naturally expires on July 2016, 03. Therefore, the Center for Population and Family Planning only has to compensate Ms. P the compensation due to illegal dismissal from January 01, 8 to July 2016, 31 (7 months) total amount of 2017 VND, including salary during the time Ms. P is not working (01 months x 01 VND) is 2017 VND; compensation for two months' salary (31 x 7 VND) is 2017 VND; the prescribed leave regime is 07 days (30.088.344 VND: 07 days x 2.831.400) is 19.819.800 VND; social insurance premium from January 02 to July 2.831.400 is 5.662.800 VND; health insurance premium from 05/2.831.400 to 30/5 (471.900 VND x 01% x 2017 months) is 7 VND.
Ms. P is a fixed-term contract employee, not a medical officer or public servant, not directly engaged in medical profession, not a contract employee under Decision No. 58/TTg dated February 03rd/ 02 by the Government, so they are not eligible for 1994% vocational preferential allowance. At the same time, the Center for Population and Family Planning participates in unemployment insurance for Ms. P when signing a 20-year labor contract, so Ms. P is not eligible for severance allowance.
1.2. Dispute over disciplinary decision on dismissal
– According to the provisions at 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; Clause 3, Article 220 of the Labor Code of 2019 then "officials" Initiating a labor case against a decision on disciplinary action for dismissal, the case shall be accepted and settled according to civil procedure procedures, the provisions of the labor law and the law on public employees. If "officer" If holding the position of General Director or equivalent or lower, initiate lawsuit against the decision on disciplinary action for dismissal, the case shall be settled according to administrative procedures.
Therefore, in procuracies, procurators and civil servants base themselves on documents such as work contracts and appointment decisions to determine exactly who the involved parties in the case are. "officer" or "officials"; managers or non-managerial officers. Determining the right subject to be disciplined for dismissal is important in determining the grounds for applying the discipline form, the authority, order and procedures for issuing the right or wrong disciplinary decision. provisions of the law.
Example: Mr. Phan Hoang X is a teacher at K Primary School, commune B, district C, province ST. On December 04, 12, the Chairman of the People's Committee of district C, province ST issued Decision No. 2015/QD-UBND on the enforcement of discipline against Mr. X; Disciplinary form: forced resignation; reason: engaging in illegal gambling (hereinafter abbreviated as Decision No. 1081). Disagreeing with the above-mentioned disciplinary decision on dismissal, Mr. X filed an administrative lawsuit requesting the Court to annul Decision No. 1081.
The first-instance court accepts administrative cases about “Initiating an administrative decision on disciplinary dismissal” between the petitioner Mr. X and the defendant being the Chairman of the People's Committee of district C; at the same time, based on Article 30, Point dd, Clause 1, Article 123 of the 2015 Law on Administrative Procedures, to issue a Decision to suspend the settlement of the above-mentioned administrative case. Mr. X has an appeal.
The Court of Appeal upheld the decision of the Court of First Instance.
In the decision on cassation review No. 06/2018/HC-GDT dated October 10, 10, the Judicial Council of the Supreme People's Court annulled the appellate and first-instance judgments and handed over the files to the first-instance level for re-trial according to regulations. According to the provisions of Article 2018 of the Law on Public Employees 2, Mr. X is an official working at a non-business unit under the People's Committee of District C. Decision No. 2010 is not a disciplinary decision. forced severance of civil servants, so they are not subjects to initiate administrative lawsuits as prescribed in Article 1081 of the Law on Administrative Procedures 30. Pursuant to Point b, Clause 2015, Article 1, Point d, Clause 29, Article 1, Article 52 Law on Public Employees 30, it should have received the petition from Mr. X, the first-instance court should guide Mr. X to initiate a lawsuit according to civil procedures to settle the labor case, but the first-instance court re-appraisal to accept, terminate the settlement of administrative cases is not in accordance with the provisions of law. The appellate court upheld the first-instance judgment as groundless, affecting Mr. X's legitimate rights and interests.
– Determine in which case the public employee is subject to disciplinary action for dismissal according to the provisions of Article 19 of Decree 112/2020/ND-CP dated September 18, 9 of the Government on handling of cadres signing law , civil servants and public employees (hereinafter referred to as Decree No. 2020/112); violations of officials; the time when the violation occurs, the time when the violation is detected; statute of limitations and time limit for disciplinary action for dismissal. In case a managerial officer has been disciplined by dismissal or an officer who does not hold a managerial position and is disciplined in the form of a warning but recidivism, the condition to be considered as a recidivism is that having committed a violation for the first time has been disciplined but in “24 month period” from the effective date of the decision on disciplinary action in the form of dismissal (manager) or warning (non-manager) “having the same violation”.
For cases where it is necessary to assess the extent of the violation (causing very serious and especially serious consequences), the procurator and civil servant shall comprehensively review documents and evidence such as a review of the prosecutor's office. organization, appraisal minutes, assessment conclusions, complaints, denunciations, inspection and examination conclusions, press information, etc. to determine the nature, extent, harm (material, political, social), scope of impact as prescribed in Clause 2, Article 6 of Decree 112/2020.
- Assess the legitimacy of authority and the order of disciplinary action against public employees.
- In case there are grounds to determine that the disciplinary decision on dismissal is illegal, the procurator or civil servant shall consider the responsibilities and obligations of the agency or organization that issued that decision similar to the content of the decision. guidance on labor discipline dispute cases in the form of dismissal mentioned in subsection 1.1, section 1, Part II of this Guide.
2. Disputes over unilateral termination of labor contracts
2.1. The employer unilaterally terminates the labor contract
– For the case of the employer's unilateral termination of the labor contract, the procurator and civil servant must first determine whether or not the employer unilaterally terminates the contract with the employer. workers. In case the employer does not unilaterally terminate the contract, no consideration shall be given to the grounds, order, procedures and consequences of unilaterally terminating the contract in contravention of the law.
Example: Mr. P presented, Mr. P and HLT One Member Limited Liability Company (hereinafter referred to as HLT Company) signed a labor contract on August 01, 8 with a working term of 2015 years. After the expiration of the above term of labor contract, on August 02, 01, Mr. P continued to stay at HLT Company to work. HLT Company did not sign a further labor contract but did procedures for granting a work permit to Mr. P. On March 8, 2017, Mr. P received information that he was fired, HLT Company did not send Mr. P the letter. advance notice, forcing Mr. P to hand over the work he is in charge of and not allowing Mr. P to work in the company. Mr. P sued that HLT Company unilaterally terminated the labor contract illegally, so he asked HLT Company to compensate Mr. P.
The first-instance labor judgment of the People's Court of TDM city stated that HLT Company unilaterally terminated the labor contract illegally and accepted Mr. P's claim for compensation. After that, HLT Company appealed; The Chief Procurator of the People's Procuracy of TDM city issued the decision on appeal.
14/2020/LD-PT on December 24, 12, the People's Court of BD province accepted the appeal of HLT Company, the protest of the Procurator of the People's Procuracy of TDM city, and corrected the labor sentence. During the first instance proceedings, Mr. P could not provide documents and evidence to prove that on March 2020, 03, HLT Company terminated the labor contract and prevented Mr. P from working. On the other hand, on March 3, 2018, Mr. P left for China, so Mr. P's claim that HLT Company unilaterally terminated the labor contract illegally from March 03, 3 is groundless.
– After determining that there is a fact that the employer unilaterally terminates the labor contract (either by behavior or in writing), the procurator and civil servant shall focus on studying the grounds for unilateral termination. labor contract, the time limit the employer must notify the employee in advance, the cases in which the employer is not allowed to exercise the right to unilaterally terminate the labor contract specified in Articles 36 and 37 of the Labor Code 2019. Note some of the following cases:
+ Unilaterally terminate the labor contract because it is believed that the employee regularly fails to complete the work according to the labor contract (point a, clause 1, Article 36 of the Labor Code 2019), prosecutors and civil servants determine whether or not there is a basis that the employee regularly does not complete the work “according to the labor contract” on the basis of reviewing the content of the labor contract or the assignment slip, the assignment notice (the job description, the requirements for the progress and quality of the work); scoreboard, evaluation and classification of job completion; emulation and commendation titles; specific statistical records of uncompleted jobs continuously in a certain period of time; regulations on criteria for evaluating the level of work completion; presentations of involved parties and related people (especially those directly assigned the task of managing and evaluating the level of work completion of employees).
+ Unilaterally terminate the labor contract under Point b, Clause 1, Article 36 of the 2019 Labor Code, the procurator and civil servant study documents and evidences about the type of labor contract signed; duration of treatment for illness and accidents of employees and results of certification by competent health authorities on “workability has not yet recovered” of workers.
+ Unilaterally terminate the labor contract because it is believed that the employee often voluntarily quits his job without a valid reason for 05 consecutive working days or more (point e, Clause 1, Article 36 of the Labor Code 2019), the Procuracy officers and civil servants to study documents and evidences on violation minutes; violation reminder minutes; time book; opinion of the company's union; data extracted from the camera (if any); testimony of witnesses to determine whether the employer's grounds for unilateral termination of the labor contract are right or wrong.
+ In fact, there is a case where a definite-term labor contract expires but the employee continues to work and within 30 days from the date of expiration of the labor contract between the employee and the employee. the employer has not signed a new contract. After that, due to not being able to agree on the contents to sign a new labor contract, the employer made a decision to unilaterally terminate the original labor contract for the reason of the contract's expiration. The employee initiates a lawsuit to request the cancellation of the decision to unilaterally terminate the labor contract.
For the above case, the procurator and civil servant determined that it was illegal for the employer to unilaterally terminate the labor contract because when the labor contract was expired, the employee continued to working, within 30 days from the date on which the definite-term labor contract expires, the parties must sign a new contract; during the time when a new contract has not been signed, the rights, obligations and interests of the two parties shall be performed according to the signed contract. If the two parties cannot reach an agreement, they shall continue to perform the signed contract or agree to terminate the labor contract.
- In case the employer commits illegal acts or decides to unilaterally terminate the labor contract, the procurator and civil servant considering the employer's obligations must perform the same as the contents of the contract. guidance on labor discipline dispute cases in the form of dismissal mentioned in subsection 1.1, section 1, Part II of this Guide.
2.2. The employee unilaterally terminates the labor contract
In case of a dispute caused by the employee unilaterally terminating the labor contract, the procurator and civil servant need to study and consider documents and evidences on the type of labor contract signed between the employee and the employee. employees and employers; the time the employee gives advance notice to the employer (in certain cases specified in Clause 2, Article 35 of the Labor Code 2019), the employee has the right to unilaterally terminate the labor contract without prior notice. for the employer), thereby determining the unilateral termination of the labor contract of the employee in accordance with the law and the responsibilities of each party after the termination of the labor contract. .
– According to the provisions of Clause 1, Article 35 of the Labor Code 2019 and Article 7 of Decree No. 145/2020, the employee has the right to unilaterally terminate the labor contract without reason, only need to comply with the obligation to give advance notice. for employers. 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; at least 03 working days if working under a labor contract with a term of less than 12 months. For specific professions and jobs such as aircraft crew members; aircraft maintenance technicians, aviation repair technicians; flight dispatchers and operators; the person who manages the enterprise in accordance with the provisions of the Law on Enterprises, the Law on the management and use of state capital invested in production and business at the enterprise; crew members working on board Vietnamese ships operating overseas; If a crew member is sub-leased by a Vietnamese enterprise to work on a foreign seagoing vessel, etc., the employee must give at least 120 days advance notice for an indefinite term contract or a definite term labor contract of 12 months or more. above; at least equal to one-quarter of the term of the labor contract, for labor contracts with a term of less than 12 months.
- In case the employee unilaterally terminates the labor contract in accordance with the law, the employer is responsible for paying in full all amounts related to the employee's interests as prescribed in Clause 1 of this Article. 48 Article 2019 of the Labor Code of XNUMX; complete the procedures to confirm the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other documents if the employer has kept them from the employee.
– In case the employee illegally terminates the labor contract unilaterally, he/she is not entitled to severance allowance, and must compensate the employer for half a month's salary according to the labor contract and a sum of money. corresponding to the salary according to the labor contract in unannounced days; reimbursement of vocational training expenses specified in Article 40 and Article 62 of the Labor Code 2019.
3. Dispute over compensation for damage upon termination of labor contract
When supervising the acceptance and settlement of a dispute over compensation for damage upon termination of a labor contract under the provisions of Point b, Clause 1, Article 32 of the 2015 Civil Code, procurators and civil servants need to determine the contents of the contract. content of the claimant's claim for damages. In case a claim is made for property damage being machinery, working equipment, workshops or other material property, the procurator or civil servant shall consider documents and evidences about the actual damage incurred; the relationship between the employer's or employee's fault and the resulting damage; extent of damage and liability for damages. In order to determine the damage and damage level, the procurator should request the court to take some measures to collect documents and evidences such as on-site examination and appraisal; property appraisal and valuation.
In case of claiming compensation for vocational training expenses upon termination of a labor contract, the procurator and civil servant shall carefully study the validity of the content of the agreement on vocational training in the labor contract or contract. vocational training or other written agreement between the employee and the employer; determine whether or not there is actual training to consider workers' compensation liability. If the employee violates the commitment on working time after being trained, the compensation for damage must be based on the actual training time with the training period in the agreement; time commitment to work after training and actual working time; training costs and expenditure items, thereby determining the correct level of compensation for damage.
For example: On May 30, 5, VT Company and Mr. Ngo Xuan Q signed a labor contract with a term of 2017 years (from June 03, 01 to May 6, 2017); The training contract, with the training period from August 31, 5 to April 2020, 01 and the training cost is VND 8, Mr. Q must work for VT Company for a period of 2016 years from training completion date.
On August 27, 8, Mr. Q submitted his resignation. On September 2017, 30, VT Company issued a decision to terminate the labor contract with Mr. Q. On May 9, 2017, VT Company filed a lawsuit to request Mr. Q to compensate the costs in the training contract with Mr. amount 15 VND.
The first-instance and appellate courts accepted the validity of the training contract, thereby accepting the lawsuit claim of VT Company, forcing Mr. Q to pay compensation for training costs in the amount of VND 410.222.000. After that, Mr. Q filed a petition to protest through cassation against the appellate labor judgment.
In the Decision No. 02/2021/LD-GDT dated November 17, 11, the cassation level court pronounced the amendment of the appellate labor judgment, rejecting the lawsuit filed by VT Company because of the training time. take place before the time of signing the contract; When the training started (August 2021, 01), VT Company did not exist (VT Company was established on March 8, 2016), while the contract took effect from the date of signing (on 30 March 3). May 2017). According to the provisions of Articles 30 and 5 of the Civil Code 2017, this is a fake civil transaction, making the training contract invalid.
4. Dispute over severance pay
For a dispute over severance pay, procurators and civil servants need to carefully study a number of contents as follows:
Conditions for employees to be paid severance allowance include: working regularly for the employee for full 12 months or more when the labor contract is terminated as prescribed in Clauses 1, 2, 3, 4, 6, 7, 9 and 10 Article 34 of the 2019 Labor Code and are not eligible for pension as prescribed in Article 169 of the Labor Code 2019, the law on social insurance; does not fall into the case of voluntarily quitting without a legitimate reason for 05 consecutive working days or more specified at Point e, Clause 1, Article 36 of the Labor Code 2019.
– The level of severance allowance as prescribed in Article 46 of the Labor Code 2019, Article 8 of Decree No. 145/2020, which notes:
+ Working time to calculate the benefit is the total time the employee has actually worked minus the time the employee has participated in unemployment insurance according to the provisions of the law on unemployment insurance and the working time. job has been paid unemployment allowance by the employee. Working time to calculate severance allowance is calculated by year (full 12 months); in case of odd months less than or equal to 06 months, it is equal to 1/2 year, over 06 months is counted as 01 working year.
+ The salary for calculation of allowance is the average salary of 06 consecutive months under the labor contract before the employee quits (in case the employee works for the employer under many successive labor contracts). The salary used to calculate the severance allowance or job loss allowance is the average salary of 06 consecutive months according to the labor contract before the termination of the last labor contract). In some cases, the Court wrongly determined the salary to calculate the allowance, so the superior Court declared an annulment or correction of the judgment.
For example: Ms. Le Thi Kim L is an accountant working at Garment Company No. 1, province C. In January 01, the Company merged with V Import-Export Joint Stock Company (hereinafter abbreviated as Company). company V). On November 1997, 15, Ms. L resigned from her job. On December 11, 2016, Company V issued Decision No. 30/QD-XNK dated December 12, 2016 to terminate the contract with Ms. L. Ms. L said that the amount of severance allowance Ms. L received was 59. 30 dong. Company V paid Ms. L 12 VND. Ms. L sued to ask Company V to pay severance allowance in accordance with the law.
The first-instance labor judgment of the People's Court of City V forced Company V to pay the remaining severance allowance to Ms. L, amounting to VND 59.614.850. Company V appealed.
In the Appellate Labor Judgment No. 04/2018/LD-PT dated November 16, 11, the appellate People's Court revised the first-instance judgment because the first-instance court calculated the severance allowance for Ms. L based on the coefficient salary that is not based on the average salary according to the labor contract of the preceding 2018 months before Ms. L's resignation is a violation of the provisions of Clause 06, Article 3 of the 48 Labor Code (now Clause 2012, Article 3 of the 46 Labor Code). Accordingly, Ms. L worked from March 2019 to December 3, 1986, minus the period of paying unemployment insurance from January 31 to December 12, the remaining period is 2016 years, 01 months, The round calculation is 2009 years and the monthly salary of Ms. L in 12 is VND 2016. Therefore, the Court of Appeal declared Ms. L entitled to severance allowance as follows: 22 years x 10 VND/year: 23 – 2016 VND (received in advance) = 5.186.500 VND.
5. Disputes over the performance of labor contracts
For a dispute over the performance of a labor contract, a procurator or civil servant should study and clarify some of the following contents:
- Contents of litigants' lawsuit about the performance of signed labor contracts (salaries, bonuses, job transfer, workplace relocation, business secrets, technology secrets, etc.) ; specific request of the applicant.
– Research on the form of entering into labor contracts (written, electronic data or orally); type of labor contract; the subject of the labor contract; validity and legitimacy of the labor contract; collective labor agreement. Through documents and evidences provided by involved parties and witnesses or documents and evidences verified and collected by the Court, procurators and civil servants compare the contents of commitments and agreements in the contract. labor contract, the appendix of the labor contract (if any) with the actual performance of the contract and the provisions of the law to give a grounded opinion on the settlement of the case. In case of disputes related to the appendix of the labor contract but the content of the agreement in the appendix leads to a different interpretation from the labor contract, the content of the labor contract shall be followed.
- Amendment and supplementation of the labor contract between the employee and the employer during the performance of the labor contract; effect of the amendment and supplement of the labor contract.
- In case the labor contract is invalid (partially or in whole), the procurator and civil servant must give his opinion on the consequences of the invalid labor contract according to the provisions of Article 51 of the Labor Code 2019; Article 9, Article 10, Article 11 of Decree No. 145/2020.
The above is a guide to some basic contents in the supervision of the settlement of individual labor dispute cases, which the People's Procuracy at all levels researches and applies to serve the supervision work. During the implementation process, difficulties and problems arise and report to the Supreme People's Procuracy (through the Procuracy Department, the settlement of administrative cases, business, commercial, labor cases and other matters according to regulations). of the law) for answers and guidance.
Attached to this Guide is an Appendix on a number of legal documents commonly applied to supervise the settlement of individual labor dispute cases.
SOME LEGAL DOCUMENTS ORIGINALLY APPLICABLE TO SETTLEMENT OF PERSONAL LABOR DISPUTES
(Issued together with Instruction No: /HD-VKSTC dated ….month…. 2022 of the Supreme People's Procuracy)
NAME OF DOCUMENT
Labor Code 2019
Civil Code 2015
Civil Procedure Code 2015
01/07/2016 (except for some regulations that take effect from 01/01/2017)
Law on Public Employees 2010 (amended and supplemented a number of articles in 2019)
Law on Social Insurance 2014
Law on Health Insurance 2008 (amended and supplemented a number of articles in 2014)
Employment Law 2013
Resolution No. 326/2016/UBTVQH14 dated December 30, 12 of the National Assembly Standing Committee providing for the collection, exemption, reduction, collection, payment, management and use of court fees and charges
Decree No. 145/2020/ND-CP dated December 14, 12 of the Government detailing and guiding the implementation of a number of articles of the Labor Code on working conditions and labor relations
Decree No. 152/2020/ND-CP dated December 30, 12 of the Government regulating foreign workers working in Vietnam and recruiting and managing Vietnamese employees working for organizations and individuals Foreigners in Vietnam
Decree No. 112/2020/ND-CP dated September 18, 9 of the Government on disciplining cadres, civil servants and public employees
Decree No. 146/2018/ND-CP dated October 17, 10 of the Government detailing and guiding measures to implement a number of articles of the Law on Health Insurance
Decree No. 28/2015/ND-CP dated March 12, 3 of the Government detailing the implementation of a number of articles of the Employment Law regarding unemployment insurance
May 01, 5 (Partially expired)
Decree No. 61/2020/ND-CP dated May 29, 5 of the Government amending and supplementing a number of articles of Decree No. 2020/28/ND-CP dated March 2015, 12 of the Government
Circular No. 10/2020/TT-BLDTBXH dated November 12, 11 of the Ministry of Labor, War Invalids and Social Affairs detailing and guiding a number of articles of the Labor Code on the content of labor contracts, the Council collective bargaining and occupations or jobs that adversely affect reproductive function and child rearing
Circular No. 11/2020/TT-BLDTBXH dated November 12, 11 of the Ministry of Labor, War Invalids and Social Affairs promulgating the List of heavy, hazardous and dangerous occupations and jobs and particularly heavy occupations and jobs , toxic, dangerous
Circular No. 09/2020/TT-BLDTBXH dated November 12, 11 of the Ministry of Labor, War Invalids and Social Affairs detailing and guiding the implementation of a number of articles of the Labor Code on juvenile workers
Circular No. 36/2020/TT-BLDTBXH dated December 31, 12 of the Ministry of Labor, War Invalids and Social Affairs providing for the adjustment of salary and monthly income for which social insurance premiums have been paid.