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.
The enterprise should keep in mind the following points in the process of developing 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.