Case on unilateral termination of Labour Contract
Main tasks and practical skills
When a Judge analyses and assesses the evidence, they need to examine the following :
- Examining the legitimacy of the Labour Contract (the Court may announce the contract to be partially or wholly invalid). The rights and obligations of the parties will be resolved according to current regulations and legal agreements of the Collective Agreement (item 3 Article 29, item 4 Article 166 Labour Code)
- Legal basis for the termination of the Labour Contract (lawful or unlawful according to above regulations)
- Procedure for termination of the Labour Contract (whether violates jurisdiction or advance notice provisions)
- Parties have no advance notice when terminating the Labour Contract according to Article 36 Labour Code ;
- In cases of unilateral termination of a labour contract according to Article 37 or Article 38 Labour Code, the party terminating the contract must give advance notice in writing.
- Dates for the period of advance notice must be working days;
- Employees who are dismissed need not receive advance notice
- A person, who is authorised to enter into an employment contract, may be authorised to terminate the contract. In all other cases, the authorisation must be made in writing.
- Resolving consequences of the termination of a labour contract
- If the termination of a labour contract complies with item 1 Article 17 and Article 31 Labour Code, the employee will not be paid a severance allowance regulated by item 1 Article 42, but will be paid an allowance for losing their job according to item 1 Article 17 Labour Code;
- If the termination of a labour contract complies with Article 36, Article 37, points a, c, d, and đ item 1 Article 38; item 1 Article 41; point c item 1 Article 85 Labour Code, the employee will be paid a severance allowance according to item 1 Article 42 Labour Code in cases where the employee worked 12 months or more;
- Before terminating a labour contract, need to consider if an employer moved the employee to other work which differed from the work agreed in the labour contract and the employee did not undertake the new work. If the change in job responsibilities complies with Article 34 Labour Law, the employee will not be paid an interruption salary according to item 2 Article 62 Labour Code and may be disciplined according to Article 84 Labour Code. If the change in job responsibilities does not comply with Article 34 Labour Code, the judge will decide whether the termination of the labour contract is unlawful.
- In cases where the termination of the labour contract is unlawful, the party unlawfully terminating the contract must pay compensation according to Article 41 Labour Code, Article 14 Decree 44/CP/09/2003.
- If the termination of the labour contract complies with point b item 1 Article 38 Labour Code, advance notice may not be give and the parties must comply with the procedure of Article 87 Labour Code. If this procedure is not observed, the termination shall be unlawful.
- The salary on which the severance allowance is calculated is an average salary of 06 successive months before the date the labour contract was terminated and includes : rank salary, post salary, local subsidy, post subsidy (if any) Decree 114/ND-CP date 31/12/2002.
Case on Dismissal
Main tasks and practical skills:
Judge need to analyse and assess the following :
- Reasons of Dismissal
- The employee has committed an act of theft, embezzlement or disclosure of trade and technological secrets or another act which causes serious damage to property and other interests of the business (if these unlawful acts are not sufficiently founded or difficult to prove, the employer may request relevant State authorities to investigate. The investigation conclusion can be used for disciplinary actions. );
- The employee, upon who a disciplinary action, such as delayed advancement, has been imposed and the disciplinary action is still on, re-violate rules or regulations. The employee, upon who relegation has been imposed, re-violate rules and regulations.
- The employee is absent without authorization and without a plausible reason from work for five days in a month or 20 days in a year (solar month, year; plausible reason means: natural disaster; fire; employee, relatives to be ill as confirmed by legal established health organization; other circumstances regulated by internal regulations.
- Degree of mistake of employee;
- Whether legal grounds used by the employer to dismiss the employee are correct and reasonable.
- Time- limit and procedure for dismissal
- The disciplinary procedure applied must comply with Article 86 Labour Code;
- The maximum time-limit for the initiation of a disciplinary procedure is: 03 months from the date of the violation (or its discovery); and
06 months in respect violations relating to finance, property, disclosure of technology or business secrets of an enterprise.
- Labour disciplinary procedures are forbidden in relation to: employees that are sick, under treatment and in convalesence, working off-site with the agreement of the employer; in temporary detention, taken into custody during a period of waiting for the investigation results of authorities; a female employee having a baby,
- Resolving consequences of dismissal:
- If a dismissal is lawful, comply with point c, item 1 Article 85 Labour Code, an employee is only paid a severance allowance according to item 1 Article 42 Labour Code;
- if a dismissal is unlawful, applying Article 94 Labour Code to resolve the interests of the employee.
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