|Ho Tuong Vy - Lawyer, Ho Chi Minh City Bar Association |
As a general rule, an employer is entitled to terminate a labour contract unilaterally with an employee in specific circumstances. A legal basis was, inter alia, incorporated into the Labour Code which came into effect in 2021, permitting an employer to unilaterally terminate the labour contract if an employee arbitrarily leaves or gives up his/her job without justifiable reason for a period of at least five consecutive working days. The justifiable reason in question, pursuant to Article 125.4 of the Labour Code, includes a natural disaster, fire, illness of the employee or his/her relatives as certified by a competent medical establishment, or other circumstances prescribed in the internal labour rules.
Diving into the appeal verdict, we figure out the views of the court in terms of lawful evidence provided by an employee if the labour contract is unilaterally terminated under Article 36.1.e of the Labour Code. Briefly speaking, Ms. O (the name was replaced) as the employee entered into a definite-term labour contract in March 2021 with Company K (the name was replaced) located in Commune T.
On the petition filed by Ms. O as the plaintiff, the general director of Company K requested her to stop working from July 15, 2021 and to file her letter of resignation to Company K. The company would then pay her the supporting amount of a 45-day wage in return. However, Ms. O rejected such a request.
A day later, Ms. O was prevented by security guards from entering the workplace to perform her job. Over the following days, Ms. O issued written requests for support to Company K’s trade union, seeking its assistance in order for her to work at the workplace, with no response.
Ms. O then filed conciliation requests with the local department of labour, invalids, and social affairs, and letters to the Confederation of Labour under Commune T.
With the availability of the said written requests and official confirmations, Ms. O successfully proved that she did not arbitrarily give up her job without justifiable reason as stated in the notice and decision on unilateral termination of labour contract issued by Company K. Consequently, the company was proven to have carried out an illegal unilateral termination of Ms. O’s labour contract.
When it comes to unilateral termination in this way, we refer to the applicable law, the guideline, and the appeal verdict to work out some actions if wearing the shoes of the employers and/or employees.
On the part of an employer, a couple of actions may be taken. First, an employer may, pursuant to Article 125.4 of the Labour Code and at its discretion, incorporate particular circumstances as justifiable reasons into its internal labour rules with the utmost care and consideration, and then inform employees of the rules for full information and compliance.
Secondly, an employer must prove the legitimacy of its unilateral termination of a labour contract. In order to do so, they shall proactively prepare evidence on its employee’s violation such as violation of minutes, timesheet book, trade union opinions, data stored on its camera, or testimonies of witnesses.
As for employees, some actions may be carried out. Firstly, the guideline requires that an employee be responsible for proving that the labour contract was unilaterally terminated; or an employee has actually come to the required workplace if an employer does not admit its unilateral termination of labour contract, and also holds its view that an employee has arbitrarily given up his/her job.
We learn from the appeal verdict that lawful evidence as recognised by the Appeal Court includes the employee’s written requests for support as well as postal notices of delivery issued by the courier.
Secondly, an employee shall seek the support of the bailiff in issuance of the latter’s report which records an employee’s incidents and communication on his/her absence witnessed by the bailiff as evidence.
An employee may, by his/her company email, send notifications to the company emails of his/her line manager, human resources, and trade union representatives informing his/her absence at the workplace and reasons for absence as evidence.
All in all, understanding the views and instructions of the court and procuracy, beyond the law, will facilitate employers and employees to apply correct legal bases and prepare lawful evidence in the support of their unilateral termination of labour contract in consistency with the law and for the sake of both parties.
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