Sharing of expertise
Question 41: When higher-ranking leaders request to speed up the layoff process but it will take 2-3 months to finish the legal procedure in accordance with labour law, what the human resources department or the internal counsel should do to strike a balance between the leaders’ request and law?
In the restructuring procedure, there are two steps for which labour law prescribes specifically in terms of time, including: The termination of LCs with many Employees due to restructuring reasons can be done after Employers have consulted the labour collective representing organisation and must give a 30-day prior notice to the provincial labour management agency….
Question 40: In the process for terminating LCs due to “restructuring”, which procedure is the most difficult, time-consuming and risky one?
Article 44 of the Labor Code and Article 13.3 of Decree 05/2015/NĐ-CP prescribes that if a restructuring affects 2 or more Employees, Employers are obliged to build and implement a new labour use option as prescribed in Article 46 of this Code; if there are new positions, Employers should, as a priority, re-train those Employees…
Question 39: Of the restructuring reasons, which one most often creates legal risks for Employers when they use it as a basis for terminating LCs?
Terminating LCs due to “restructuring” is a commercial expression which is used in replacement of the legal concept of terminating LCs due to change of structure or technology, or economic reasons. In this book, to make it easy to understand, the legal expression “due to change of structure or technology, or economic reasons” will be…
Question 38: What conditions must the Employer fulfil to terminate LCs with Employees in case the enterprise’s structure is changed? What are the Employer’s obligations in case LCs are terminated due to the above reason?
The basis for terminating LCs due to changes in the structure As prescribed by law, the Employer may terminate LCs with Employees due to changes in the structure regardless of which type of LC they have[1]. However, the termination of LCs in this case must fulfil the following conditions: Condition 1 – there is a…
Question 36: Can Employers unilaterally revise the contents of Employees’ job descriptions and the criteria for evaluating the task completion level, which serve as the basis for determining whether Employees regularly fail to complete their tasks?
Job description As prescribed by the labour law, the job description is one of the items that must be included in an LC[1]. However, each position specified in the LC will include a large number of detailed and particular responsibilities that Employees must fulfil, so they cannot be presented fully in just the title section…
Question 35: If Employees disagree with the criteria for evaluating the task completion level, can Employers rely on these criteria as a basis for unilaterally terminating LCs with Employees?
In order to unilaterally terminate LCs with Employees for the reason that they regularly fail to fulfil the tasks, labour law only requires Employers to set the criteria for evaluating the task completion level in the enterprises’ regulations after consulting the grassroots labour collective representing organisation[1]. Accordingly, the Employees’ comments (agree or disagree) will not…
Question 34: If the labour collective representing organisation does not agree with the criteria for evaluating the Employee’s task completion level which serves as a basis for the unilateral termination of LCs, can these criteria be considered valid? If the labour collective representing organisation agrees with the criteria, what are the legal risks in case the court and/or local labour management agency does not agree with these criteria in settling labour disputes?
As prescribed by labour law, Employers will set the regulation on evaluating the Employee’s task completion level after consulting the grassroots labour collective representing organisation[1], i.e. the grassroots Trade Union Executive Committee or the executive committee of the direct superior trade union if the grassroots trade union has not been established[2] (hereinafter referred to collectively…
Question 33: When (week, month, quarter, year) can Employers evaluate whether an Employee regularly fails to fulfil the tasks agreed upon in the signed LC?
The labour law does not provide for the time or period when Employers must regularly evaluate the task completion level by Employees in order to determine if the Employees can regularly fulfil their tasks as agreed upon in LCs. Instead, labour law only provides the basis and requires Employers to prescribe the criteria for evaluating…
Question 32: If two or more Employees work at the same position, is it possible for them to have different job descriptions and different criteria for evaluating the task completion level?
The Labor Code and its applicable guiding documents do not have any regulation to govern the contents of job descriptions and the criteria for evaluating the task completion level, which serves as a basis for Employers to consider the unilateral termination of LCs. Therefore, the contents of job descriptions and the criteria for evaluating the…
Question 31: Can Employers separately build the evaluation criteria for the jobs of a quantitative nature (marketing and sales Employees etc.) and the jobs of a qualitative nature (accountants, secretaries, administrators etc.)? If yes, how should we separate these evaluation criteria?
From the legal perspective, labour law only regulates generally that Employers must prescribe the criteria for evaluating the task completion level in the enterprises’ regulations after consulting the grassroots labour collective representing organisation, but does not give instructions about how to build the criteria for evaluating the task completion level achieved by Employees. So, each…