Normally, individual labor disputes must be resolved through mediation by labor mediators before being brought to Labor Arbitration Council or Court. However, in some cases of individual labor disputes (“LD”), the parties can initiate a lawsuit directly to Court to ask for a resolution without conducting mediation. So, which are the cases? Let’s find out through the article below.
I. Labor disputes can be brought directly to Court without conducting mediation
Clause 1, Article 188 of Labor Code 2019 stipulates that cases of labor disputes between employees and employers can be sued directly to Court without going through mediation. Accordingly, such disputes include:
- Disputes over dismissal for disciplinary reasons; unilateral termination of employment contracts;
- Disputes over damages and allowances upon the termination of employment contracts;
- Disputes between a domestic worker and his/her employer;
- Disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws, disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and health laws;
- Disputes over damages between an employee and an organization dispatching the employee to work overseas under a contract;
- Disputes between the outsourced worker and the client enterprise.
Conversely, if not falling into the above cases, those disputes must be resolved through mediation by the labor mediator in accordance with the procedures in Article 188 of Labor Code 2019 before requesting Labor Arbitration Council or Court to settle.
II. Jurisdiction of Court to settle individual labor disputes
The parties need to determine the correct jurisdiction of the court to settle labor disputes according to the principles of the Civil Procedure Code 2015 (“CPC 2015”). Determining the competent court helps to quickly accept and settle the case and also to protect the legitimate rights and interests of the infringed party.
Step one, determining the jurisdiction of the Court by level regulated in Article 35 and Article 37 of CPC 2015, specifically:
- People’s Courts of districts shall have the jurisdiction to settle according to the first-instance procedure of the labor disputes prescribed in Article 32 of CPC 2015.
- People’s Courts of provinces shall have the jurisdiction to settle labor disputes involving foreign parties or assets or requiring judicial assistance.
Step two, determining the territorial jurisdiction of Courts stipulated in Article 39 of CPC 2015, specifically:
- Court of the localities where defendants being individuals reside or where defendants being organizations are headquartered.
- The involved parties shall have the right to agree with each other in writing to request Courts of the localities where plaintiffs reside or work to settle the labor dispute.
Jurisdiction of Courts selected by plaintiffs is specified in Article 40 of CPC 2015 as follows:
- If the plaintiff does not know where the defendant resides or works or where his/her head office is located, the plaintiff may petition the Courts of the area where the defendant last resides or works or where the head office of the defendant is last located or where the defendant’ properties are located to settle the case;
- If the dispute is over the compensation for damage or allowance upon the termination of an employment contract, over social insurance, health insurance, unemployment insurance, the rights and/or interests about the job, wages, income, and other working conditions for the employees, the plaintiff being an employee may petition the Court of the area where he/she resides or works to settle it;
- If the dispute arises from the employment of a contractor or an intermediary, the plaintiff may petition the Court of the area where his/her actual employer resides, works, or is headquartered or where the contractor or the intermediary resides or works to settle it;
- If the defendants reside, work, or are headquartered in different places, the plaintiff may petition the Court of the area where one of the defendants resides or works or is headquartered to settle the case;
Combining the results of the two steps above, we can determine which Court has the authority to settle labor disputes to initiate labor disputes.
III. Legal services of TNTP when participating in the settlement of labor disputes
The legal services that TNTP provides when participating in the settlement of labor law cases include:
- Advising on the rights and obligations of the disputing parties;
- Advising on options for dispute resolution (can be negotiated, mediated, or sued in court);
- Instructing the client to collect evidence;
- Participating in negotiations and mediation in cases of labor disputes;
- Advising on grounds and procedures for initiating lawsuits at Court;
- Drafting lawsuit files and other documents to serve the settlement of the case;
- Participating in court hearings (first instance, appellate trial) as a lawyer to protect the client’s legitimate rights and interests;
- Being the represented lawyer to protect the legitimate rights and interests of the client during the execution phase.
Above is the content of the article “Labor disputes brought to Court without conducting mediation”. If you need assistance with legal issues related to labor law, please contact TNTP for timely support.