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?

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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 be a mandatory condition for the regulation on evaluating the task completion level to be effective. Therefore, if Employers have set the regulation on evaluating the task completion level in accordance with the prescribed procedure, they may rely on this regulation to unilaterally terminate LCs with Employees despite the fact that Employees disagree with this regulation.

However, if Employees disagree with the Employers’ unilateral termination of LCs and lodge their complaints with the local labour management agency or initiate a lawsuit in a competent court, then Employers will be obliged to prove the legality of the decision on unilateral termination of LCs, particularly to prove the legality and appropriateness of the regulation on evaluating the task completion level set by Employers[2]. If the labour management agency and/or the competent court declares that this regulation is not applicable as some of its contents are against labour law or not appropriate for the an enterprise’s realities, or this regulation seems to be unfair with Employees, then the Employers’ unilateral termination of LCs may be declared as unlawful. Employers must therefore revise the regulation on evaluating the task completion level and get comments of the TUEC thereon, which will then be used as a basis for evaluating the task completion level achieved by Employees.

Therefore, in order that the regulation on evaluating the task completion level will not be rejected by Employees or disapproved by labour dispute settlement agencies with respect to its contents, Employers must satisfy the following conditions: (i) the regulation must be agreed upon by all the members of the TUEC prior to its issuance; (ii) the contents of the regulation are not against the law; and (iii) in terms of human resources administration, Employers need to consult the concerned Employees about the criteria for evaluating the task completion level which will be applied to them, as a way to notify and make them clear about the regulation.

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

[2] Article 91.1 (b) Civil Proceedings Code 2015