Author: TNTP LAW

Since the employee is unilaterally terminated from the labour contract, if the employee believes that such termination is unlawful, the employee needs to promptly gather relevant evidence regarding the incident. In the following article, TNTP will provide employees with essential evidence that needs to be collected to prove the employer’s unlawful unilateral termination of the labour contract.

1. Evidence showing the employment relationship

The first evidence that the employee needs to gather is the labour contract, as the labour contract demonstrates the employment relationship between the employee and the employer. However, in some cases, the employee and the employer may not sign a labour contract, or the contract might not be in written form. In such cases, the employee can collect other valid evidence, such as probationary contracts, job offer letters, job acceptance emails, work-related email exchanges within the enterprise, attendance records, documents indicating the enterprise’s salary payments to the employee, such as individual payroll records, salary transfer documents to the employee’s account, etc.

2. Evidence demonstrating the grounds for unilateral termination of the labour contract

When unilaterally terminating the labour contract with the employee, the employer will present the grounds or reasons for such termination, such as the employee’s consistent failure to complete assigned tasks, the employee’s voluntary resignation without valid reasons, etc. In this case, the employer may create documents that demonstrate the employee’s violations, such as meeting minutes, work records, incident reports, etc.

3. Evidence demonstrating the termination of the labour contract

When unilaterally terminating the labour contract, the employer may issue termination notices, termination decisions, etc. If the employer does not issue a termination decision, or the employer issues a decision but doesn’t provide it to the employee, or the employer issues a notice but unilaterally terminates the contract in practice, the employee needs to gather evidence showing the enterprise’s prevention of employee’s work rights, evidence demonstrating the enterprise’s obstruction of the employee’s work rights, etc.

4. Evidence demonstrating the labour-related benefits fulfilled and unfulfilled by the employer

When unilaterally terminating the labour contract with the employee, whether legally or unlawfully, the employer still has obligations towards the employee, such as paying all relevant sums related to the employee’s entitlements including salary, termination allowance, salary for unused annual leave days, etc. Evidence for these benefits includes payment documents, accounts receivable reconciliation records, social insurance records, etc.

5. Internal enterprise documents

As explained earlier, when unilaterally terminating the labour contract with the employee, the employer needs to justify the termination based on legally appropriate grounds. One of the bases that the employer often uses is the employee’s consistent failure to complete assigned tasks. The employer must establish the criteria for assessment of employees’ fulfilment of duties to terminate based on this ground. The employee should review the content of the criteria, and assess whether the procedure for implementing it complies with legal requirements.

The law does not specify the exact procedure that the employer must follow for unilaterally terminating labour contracts. Therefore, employees should research whether the procedure is outlined in the enterprise’s internal documents, to verify whether the enterprise has adhered to the provisions of these internal documents. Additionally, employees should gather information on the salary and bonus policies, as these documents will be applied to address the employee’s rights in cases where disputes arise over salary amounts, serving as a basis for resolving the consequences of the unlawful unilateral termination of the labour contract.

In cases where the enterprise has established labour agreements or internal regulations, employees should collect this information to seek relevant content related to the unilateral termination of labour contracts and the rights of employees when facing such unilateral termination.

6. Other relevant documents

Apart from the documents mentioned above, based on the actual situation, the employee should gather other documents relevant to the incident. For instance, if the received salary by the employee differs from the salary specified in the labour contract, the employee can collect evidence showing the actual salary paid to the employee, such as individual payroll records, salary transfer documents to the employee’s account, etc.

Collecting and compiling evidence will support the employee in proving the employer’s unlawful unilateral termination of the labour contract and establish the basis to protect the employee’s rights. In other words, thorough evidence collection will provide the employee with the necessary grounds to demonstrate that the employer’s unilateral termination was unlawful, and allow the employee to demand that the employer fulfil responsibilities.

The above is the article “Evidence is required to prove that the employer has unlawfully terminated the labour contract” that TNTP provides to the readers. For any issues requiring discussion, please contact TNTP for assistance.

Best regards,

If the employee faces unlawful unilateral termination of the labour contract, the employee has the right to request relevant individuals, organizations, and authorities to resolve the dispute on their behalf. In the following article, TNTP will present some individuals, organizations, and authorities that assist in resolving disputes for terminating a labour contract

1. Representative Organization of Employees

The representative organization of employees means an internal organization voluntarily established by employees of an employer which protects the employees’ legitimate rights and interests in labour relations through collective bargaining or other methods prescribed by labour laws. Representative organizations of employees include internal trade unions and internal employee organizations.

Therefore, it can be seen that the representative organization of employees is established to protect the legitimate rights of employees. When the employee’s rights are violated, the employee can request this organization to resolve disputes related to the employer’s unlawful unilateral termination of the labour contract.

2. Employer

When the employee believes that the employer has unlawfully terminated the labour contract and has evidence to support this claim, the employee should first engage in negotiations with the employer. Negotiations can be conducted through written communication, emails, online meetings, or in-person discussions. If the employer is cooperative, both parties can agree on a suitable resolution based on their mutual interests. If the employer maintains her/his opinion or refuses to engage, the employee can draft a formal complaint to submit to the employer. This serves as evidence that the employee has initiated the first complaint to the employer, after which the employee can proceed to file a second complaint with the Chief Inspector of the Department of Labour – Invalids and Social Affairs.

3. Chief Inspector of the Department of Labour – Invalids and Social Affairs

The Employee can request the Chief Inspector of the Department of Labour – Invalids and Social Affairs at the location where the enterprise is headquartered to handle the second complaint when the employee disagrees with the initial resolution by the employer or when the prescribed time limit for resolution has passed.

The time limit for resolving the initial complaint is no more than 30 days from the date of acceptance; for complex cases, the time limit is no more than 45 days from the date of acceptance. In remote or difficult-to-reach areas, the time limit is no more than 45 days from the date of acceptance; for complex cases in these areas, the time limit is no more than 60 days from the date of acceptance.

4. Labour Mediator

The employee can request a labour mediator to resolve the dispute with the employer. Labour mediators have the responsibility to guide and support the parties in negotiations to resolve.

5. Labour Arbitration Council

In cases where the employee and the employer agree to resolve the dispute through the Labour Arbitration Council, both parties have the right to request the Labour Arbitration Council to handle the dispute according to legal regulations.

6. Competent Court

After unsuccessful negotiations with the employer, most employees resort to litigation in the competent Court due to the effectiveness of this method.

Firstly, disputes regarding unlawful unilateral termination of the labour contract do not require mandatory mediation by a labour mediator. Therefore, employees can directly initiate legal proceedings in the competent Court.

Secondly, employees are exempt from paying advance court fees and court fees when initiating proceedings to resolve disputes related to unlawful termination of the labour contract. To be exempt from these fees, employees need to submit a request for exemption or reduction of court fees along with relevant documents and evidence of eligibility.

Thirdly, in cases where the Court issues a favourable judgment/decision for the employee, the employee has the right to request enforcement authorities to compel the employer to execute the Court’s judgment/decision. This is arguably the most effective approach to litigation, as in other resolution methods, even if both parties agree on terms favourable to the employee, the employer’s non-compliance would not allow the employee to enforce the terms. Therefore, the employee can continue to pursue litigation in the competent Court.

7. Other Individuals, Organizations, and Authorities

Employees can request other relevant organizations and authorities to safeguard their rights and interests. These include social insurance agencies (in cases involving disputes related to insurance contributions, failure to record social insurance, etc.), the Vietnam General Confederation of Labour, the Labor Union of the city where the employer is headquartered, etc.
Additionally, employees can consider engaging legal services from lawyers specializing in labour law. Lawyers can propose resolution strategies, draft necessary documents, provide advice, and represent employees in protecting their rights and interests.

The above is the article “Unilaterally terminating a labour contract against the law – Who is responsible for resolving it?” that TNTP presents to readers. Should there be any issues requiring discussion, please contact TNTP for assistance.

Sincerely,

The employer is responsible for providing work and paying salary to the employee, ensuring a safe working environment, complying with legal regulations, and respecting the rights of the employee. However, many employers have failed to fulfil their responsibilities, unilaterally terminating labour contracts unlawfully, significantly affecting the employee’s rights. Thus, in cases of unlawful unilateral termination of labour contracts by the employer, what responsibilities can the employee demand from the employer? In the following article, TNTP will detail the responsibilities the employer must bear when unilaterally terminating labour contracts against the law.

1. Responsibilities of the employer when unilaterally terminating labour contracts

According to Article 46, Article 48, Clause 3 of Article 113 of the 2019 Labor Code (“LC”), when unilaterally terminating the labour contract with the employee by or against the law, the employer still has the following responsibilities towards the employee:

(i) Fully settle all relevant amounts related to the employee’s entitlements (salary, termination allowance, salary for unused annual leave days, etc.) within 14 working days from the date of labour contract termination. However, this period may extend, but not exceed 30 days, in the following cases:

a) The employer is not an individual terminating activities;

b) The employer changes the structure, technology, or for economic reasons of the enterprise;

c) Division, separation, merger, amalgamation; sale, lease, conversion of the enterprise type; transfer of ownership rights, use rights to the assets of the enterprise or cooperative;

d) Due to natural disasters, fires, enemy actions, or dangerous epidemics.

(ii) Complete the procedures for confirming the period of social insurance, and unemployment insurance, and return the original copies of other documents held by the employer;

(iii) Provide copies of relevant documents regarding the employee’s work process if requested. Costs of copying and sending documents are borne by the employer.

The employee should note the following: In cases where annual leave has not been taken or not all annual leave days have been used, the employer must pay salary for the remaining unused leave days; the employer must provide termination allowance for the employee who has worked regularly for the employer for at least 12 months, receiving half a month’s salary for each year worked, except in cases where the conditions for receiving retirement benefits are met according to the regulations of social insurance, or the employee voluntarily resigns without valid reasons for five consecutive working days or more.

Depending on the enterprise’s internal documents and agreements between the employee and the employer, the employer may also have additional responsibilities when terminating labour contracts, such as paying support amounts. Therefore, when faced with unilateral labour contract termination by the employer, the employee should rely on legal provisions, internal regulations of the enterprise, and agreements between the parties to determine the responsibilities that the employer must fulfil. If the employer fails to comply or incompletely complies, the employee has the right to demand that the employer fulfil all the responsibilities.

2. Responsibilities of the employer when unilaterally terminating labour contracts unlawfully

When unilaterally terminating the labour contract unlawfully, in addition to fulfilling the responsibilities defined in the first part of the article, the employer must also bear the responsibilities stipulated in Article 41 of the LC, which include:

(i) The employer must reinstate the employee to work according to the labour contract that was concluded, pay salary, contribute social insurance, health insurance, and unemployment insurance for the days the employee was not able to work and pay an additional amount to the employee of at least two months’ salary according to the labour contract.

(ii) In case of violating the notice period requirement, the employer must pay an amount corresponding to the salary according to the labour contract for the days without prior notice.

(iii) If the originally assigned position or work in the labour contract is no longer available, and the employee still wants to work, both parties must agree to amend or supplement the labour contract.

(iv) In cases where the employee does not wish to continue working, in addition to the mentioned payment, the employer must provide a termination allowance to end the labour contract.

(v) If the employer does not want to re-employ the employee and the employee agrees, in addition to the mentioned payment and termination allowance, the parties must agree on additional compensation for the employee, but at least equivalent to two months’ salary according to the labour contract to terminate the labour contract.

The employee should note the following: After being re-employed, the employee must reimburse the termination allowance, and unemployment allowance if received from the employer.

Thus, when unlawfully unilaterally terminating the labour contract, the employee can request the employer to undertake the responsibilities according to legal regulations.

The above is the article “Responsibilities of the employer when unilaterally terminating a labour contract against the law” that TNTP sends to the readers. In case of issues requiring discussion, please contact TNTP for assistance.

Best regards,

Since the employee is unilaterally terminated from the labour contract, if the employee believes that such termination is unlawful, the employee needs to promptly gather relevant evidence regarding the incident. In the following article, TNTP will provide employees with essential evidence that needs to be collected to prove the employer’s unlawful unilateral termination of the labour contract.

1. Evidence showing the employment relationship

The first evidence that the employee needs to gather is the labour contract, as the labour contract demonstrates the employment relationship between the employee and the employer. However, in some cases, the employee and the employer may not sign a labour contract, or the contract might not be in written form. In such cases, the employee can collect other valid evidence, such as probationary contracts, job offer letters, job acceptance emails, work-related email exchanges within the enterprise, attendance records, documents indicating the enterprise’s salary payments to the employee, such as individual payroll records, salary transfer documents to the employee’s account, etc.

2. Evidence demonstrating the grounds for unilateral termination of the labour contract

When unilaterally terminating the labour contract with the employee, the employer will present the grounds or reasons for such termination, such as the employee’s consistent failure to complete assigned tasks, the employee’s voluntary resignation without valid reasons, etc. In this case, the employer may create documents that demonstrate the employee’s violations, such as meeting minutes, work records, incident reports, etc.

3. Evidence demonstrating the termination of the labour contract

When unilaterally terminating the labour contract, the employer may issue termination notices, termination decisions, etc. If the employer does not issue a termination decision, or the employer issues a decision but doesn’t provide it to the employee, or the employer issues a notice but unilaterally terminates the contract in practice, the employee needs to gather evidence showing the enterprise’s prevention of employee’s work rights, evidence demonstrating the enterprise’s obstruction of the employee’s work rights, etc.

4. Evidence demonstrating the labour-related benefits fulfilled and unfulfilled by the employer

When unilaterally terminating the labour contract with the employee, whether legally or unlawfully, the employer still has obligations towards the employee, such as paying all relevant sums related to the employee’s entitlements including salary, termination allowance, salary for unused annual leave days, etc. Evidence for these benefits includes payment documents, accounts receivable reconciliation records, social insurance records, etc.

5. Internal enterprise documents

As explained earlier, when unilaterally terminating the labour contract with the employee, the employer needs to justify the termination based on legally appropriate grounds. One of the bases that the employer often uses is the employee’s consistent failure to complete assigned tasks. The employer must establish the criteria for assessment of employees’ fulfilment of duties to terminate based on this ground. The employee should review the content of the criteria, and assess whether the procedure for implementing it complies with legal requirements.

The law does not specify the exact procedure that the employer must follow for unilaterally terminating labour contracts. Therefore, employees should research whether the procedure is outlined in the enterprise’s internal documents, to verify whether the enterprise has adhered to the provisions of these internal documents. Additionally, employees should gather information on the salary and bonus policies, as these documents will be applied to address the employee’s rights in cases where disputes arise over salary amounts, serving as a basis for resolving the consequences of the unlawful unilateral termination of the labour contract.

In cases where the enterprise has established labour agreements or internal regulations, employees should collect this information to seek relevant content related to the unilateral termination of labour contracts and the rights of employees when facing such unilateral termination.

6. Other relevant documents

Apart from the documents mentioned above, based on the actual situation, the employee should gather other documents relevant to the incident. For instance, if the received salary by the employee differs from the salary specified in the labour contract, the employee can collect evidence showing the actual salary paid to the employee, such as individual payroll records, salary transfer documents to the employee’s account, etc.

Collecting and compiling evidence will support the employee in proving the employer’s unlawful unilateral termination of the labour contract and establish the basis to protect the employee’s rights. In other words, thorough evidence collection will provide the employee with the necessary grounds to demonstrate that the employer’s unilateral termination was unlawful, and allow the employee to demand that the employer fulfil responsibilities.

The above is the article “Evidence is required to prove that the employer has unlawfully terminated the labour contract” that TNTP provides to the readers. For any issues requiring discussion, please contact TNTP for assistance.

Best regards,