LABOR ARTICLES

Evaluation regulation of employees’ duty fulfillment, the basis for enterprises to unilaterally terminate labor contracts

Evaluation regulation of employees’ duty fulfillment, the basis for enterprises to unilaterally terminate labor contracts
Evaluation regulation of employees’ duty fulfillment, the basis for enterprises to unilaterally terminate labor contracts

Stemming from severe legal consequences of unilateral terminations of the labor contract, regulations on the right of employees and employers to unilaterally terminate the labor contract have been focused on by the State for a long time. Law on labor in general and trial practice in Vietnam in particular are still developed and applied in faith of protecting the weaker party in the labor relationship, namely the employee. However, the Labor Code 2019 has been promulgated with many additional provisions to better protect the interests of the employer, who has the right to unilaterally terminate the labor contract in order to balance with the interests of the employee, especially in case the employee repeatedly fails to complete the work according to the signed labor contract.

Determination of an employee who repeatedly fails to complete the work as a basis for exercising the right to unilaterally terminate the labor contract must be based on the criteria mentioned in the evaluation regulation of employees’ duty fulfillment (the “Evaluation Regulation”) promulgated by the enterprise. However, many enterprises still face many difficulties and obstacles in developing, promulgating and applying this regulation because it has not been disseminated and framed by specific instructions. This article will provide the enterprises with some notes for building, promulgating and applying them effectively to ensure their legitimate interests.

Notable factors when developing the Evaluation Regulation

The enterprise should keep in mind the following points in the process of developing the Evaluation Regulation:

  • Although the Evaluation Regulation is not bound in terms of form and content according to the labor law, it is established on the criteria that the enterprise expects the employee to achieve corresponding to the job position occupied by the employee. However, the Evaluation Regulation should be consistent with the provisions of the law, and concurrently with the provisions of the Internal Labor Regulations, the Collective Labor Agreement (if any). Indeed, Internal Labor Regulations and, the Collective Labor Agreement are documents that directly regulate the behavior, activities and work performance of employees but also are legal management tools of the enterprise towards the The Internal Labor Regulations must refer to the Evaluation Regulation as an integral and indispensable part of the Internal Labor Regulations. In addition to developing appropriate internal employee management documents consistent with other regulations previously issued by the enterprise and without any conflicting terms, the content of the Evaluation Regulation should be consistent with business development plan and orientation of the enterprise.
  • For a group of jobs with quantifiable characteristics such as selling, production activities, taking care of customers, the enterprise should concretize the criteria for assessing the level of work completion of the employee in specific numbers and proportions for each position and title held by the employees. However, the above method will cause more difficulties for the enterprise when evaluating employees doing jobs with qualitative characteristics such as accounting, legal, design, art, etc. At that time, the enterprise should consider job performance, processing time, workload or creativity, customer feedback/evaluation for employees, etc. These evaluation criteria should be summarized in the process of the actual operation of the enterprise to reflect the level of work completion of the employees more
  • “The frequency of no fulfilling duties” is a factor that needs to be focused on and clarified in the regulation for evaluating employees’ fulfillment of duties. If the employee has not achieved and fulfilled the assigned duties, depending on frequency and duration, it can be regarded as a repeated failure to perform the job which raises issues that need to be clarified. If these issues are unclear and not specific, the regulation will be difficult to apply for disputes with employees who regularly fail to complete the work. The enterprises are recommended to identify such employees to take any action but it should only be considered if the employee fails to meet the performance standard, at least for the second time within a reasonable limit period.
  • For all positions, each different job title should have its own criteria and level of evaluation instead of “same criteria” in order to create objectivity. In addition, during the process of developing these criteria, the enterprise should collect and consult opinions and suggestions of the employees, managers and representative organizations of employees (including internal trade unions or a representative organization of employees at the enterprise) to have an objective, multi-dimensional assessment and reach the consensus of the employees in the process of application and implementation.

Some notes when promulgating the Evaluation Regulation

To apply the right to unilaterally terminate the labor contract because the employee repeatedly fails to complete the work, in addition to developing a clear and specific regulation for evaluating employees’ fulfillment of duties, the enterprise also has to promulgate and publicly apply these criteria according to specific procedures. One step of the procedure that the enterprise must perform is to consult internal representative organizations of the employees for the draft of assessment regulation of the fulfillment of duties before promulgating it for application. The consultation procedure with internal representative organizations of employees is carried out through dialogue at the workplace. Participants in the dialogue at the workplace will include representatives of the enterprise, employees or representative organizations of employees. Usually, internal representative organizations of employees involved in the dialogue are internal labour unions. If the enterprise has not yet established internal trade unions, the immediate superior labour unions (also known as the district labor confederation) will act as a substitute.

The enterprise is responsible for sending a written proposal and the draft of the Evaluation Regulation to the representative organization of the employees for consultation. At that time, the representative organization will hold dialogue under the law to collect opinions of the employees on the draft and aggregate it in writing to send to the enterprise. However, for the enterprises that have not yet established internal labor unions, the enterprise will collect opinions or record confirmations from the employees directly to propose immediate superior trade union to consider and approve the draft Evaluation Regulation. After receiving the employees’ consent and the approval of the representative organization of the employees, the enterprise shall publish the Evaluation Regulation and notify it each department of the enterprise for public and uniform application.

Thus, it can be seen that the development of the Evaluation Regulation is necessary and this Regulation plays an essential role for the enterprise in the right to unilaterally terminate a labor contract concluded with an employee who regularly fails to complete the work. Especially in the context of the current changes and difficult-to-control working environment, terminating the labor relationship with employees who cannot work effectively and, do not devote their efforts to the enterprise is a solution optimized for cost and personnel. In addition, the proper recognition of the roles, functions and objectives of the Evaluation Regulation shall allow the enterprise to take appropriate orientations and actions to build a complete employee management system.

The article is based on applicable law at the time noted as above and may no longer be appropriate at the time the reader approaches this article as the applicable law has changed and the specific case that the reader wishes to apply. Therefore, the article is only for reference.