Question 30: If Employers and Employees sign LCs without job descriptions, do Employers have the grounds to conclude that Employees have regularly failed to fulfil their tasks in order to be able to unilaterally terminate LCs? Can Employers unilaterally make up a job description after LCs have been entered into to use it as a basis for evaluating Employees’ performance in this case?

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In practice, there are many cases where Employers and Employees only agree on the positions or titles which are specified in LCs, and do not include a description of the tasks that Employees must fulfil. From the legal perspective, labour law does not require Employers to attach a job description to LCs, but requires Employers to set the regulation on evaluating the Employee’s task completion level after consulting the labour collective representing organisation if they wish to unilaterally terminate LCs for the reason that Employees cannot fulfil their tasks[1].

We should be aware that it is not necessary for all the job positions or titles to be attached with a detailed job description. Often, simple jobs will not have a job description attached to LCs. On the other hand, more complicated, office-related, managerial jobs etc. will have job descriptions attached to LCs. But this cannot prevent Employers from building the requirements or criteria for the Employees who do not have job descriptions attached to their LCs.

Therefore, not having job descriptions is not a legal reason to prevent Employers from evaluating the Employee’s task completion level, especially when Employers have complied with the procedure for setting the regulation on evaluating the Employee’s performance and the contents of this regulation are consistent with each position and department in the enterprise; and Employees are fully aware of the requirements and criteria that Employers set out for them.

However, it is evident that job descriptions will create more advantages for Employers when they need to evaluate the Employee’s task completion level, or contrast the job description with the criteria set out in the regulation on evaluating the Employee’s performance. If a job description is not available, Employees may disagree with Employers’ conclusions when they think that the criteria set out in the regulation on evaluating the Employee’s performance do not belong to the responsibilities and duties that they must fulfil.

If a job description has not been attached to LCs and now Employers want to add it, this must be considered as a form of amending and supplementing LCs. So if Employers need to add a detailed job description to the LC as its integral part, they must notify Employees of the items to be supplemented to the LC at least 3 working days in advance. If the two parties can reach an agreement, the amendment or supplement of LCs will be made by signing contract appendices or entering into new LCs. If the two parties cannot negotiate the amendment or supplement of LCs, then they must continue to execute the signed LCs[2], meaning that there is no job description attached to the LCs.

[1]Article 12.1 Decree 05/2015/NĐ-CP dated 12/01/2015

[2]Article 35 Labor Code