Mr. Tran Cong T has worked at L Co., Ltd. – L Supermarket – B Branch since September 09, 2013 according to the job invitation letter dated August 20, 2013 issued by L Co., Ltd. According to the job invitation letter, Mr. T was invited to work as the Head of Non Food Department under the employment contract of a fixed term (12 months or longer), with probation period: 02 months, gross salary during the probation period: VND 15,300,000, basic monthly salary: VND 12,600,000, and fixed monthly allowances: VND 5,400,000.
Mr. T began his job on September 09, 2013. After the 02-month probation period ended (from September 09, 2013 to November 09, 2013), Mr. T still continued doing at his job. On December 19, 2013, Mr. T quit his job. On December 28, 2013, the Personnel Department of L Co., Ltd. has invited Mr. T in writing to the Company for attending the meeting and entering into the “written agreement on early termination of employment contract”. According to his opinions specified in such agreement, Mr. T stated that he disagreed with the termination of employment contract. On December 29, 2013, L Co., Ltd. has issued a Decision No. 15/QDKL- 2013 on unilateral termination of the employment contract with Mr. Tran Cong T with the reason that Mr. T repeatedly failed to fulfill his duties under the contract terms, and being effective as from December 28, 2013. On January 06, 2014, Mr. T received the said Decision on termination of employment contract.
On February 24, 2014, Mr. Tran Cong T filed a petition against the unilateral termination of employment contract with the following requests:
1. Invalidate the Decision No. 15/QDKL-2013 dated December 29, 2013 issued by L Co., Ltd. on unilateral termination of employment contract.
2. Request L Co., Ltd. to make the following payments:
- Penalty for failure to give a prior notice of 45 days before unilaterally terminating the employment contract as VND 27,000,000.
- 02-month salary as compensation for illegal termination of employment contract: VND 36,000,000. The Company has paid VND 19,466,000. Now, The Company is required to pay the remaining amount of VND 16,534,000.
- Wage for overtime work in the period of 45 days: VND 48,150,000.
- Payment in lieu of untaken annual leave of 11 days: VND 6,600,000.
- Payment in return for compensatory time off of 11 days: VND 6,600,000.
- Remaining unpaid amount of salaries of November and December calculated on the basis of monthly salary of VND 18,000,000 per month: VND 5,400,000.
- Total amount of social insurance, health insurance and unemployment insurance contributions: VND 24,696,000.
-Compensation for illegal unilateral termination of employment contract as regulated in Article 42 of the Labour Code for the period commencing from January, 2014 to the court date: VND 18,000,000/month. Total amount temporarily calculated for 07 months: VND 126,000,000.
- Compensation for moral damage suffered from the unilateral termination of employment contract inconsistently with laws.
The authorized representative of L Co., Ltd. believed that: L Co., Ltd. decided to terminate the employment contract with Mr. T because he repeatedly failed to fulfill his duties under the contract terms. To be specific: After 02-month probation period, according to the work and performance evaluation plan dated November 10, 2013, Mr. T was found to fail work requirements for the Head of Non Food Department, so Director of L supermarket – B Branch decided to allow Mr. T to take an additional probation period of 01 month so as to facilitate Mr. T in fulfillment of his duties and have more time to make exact evaluation of his working capacity. The probation period is prolonged because the official opening day of L supermarket – B Branch was December 05, 2013. After the additional probation period of 01 month has ended, on December 12, 2013, the Head of sales supervision department of L supermarket – B Branch concluded that Mr. T failed work requirements and requested the Company to appoint another person as a replacement for Mr. T.
On December 24, 2013, according to the minutes of meeting No. 10 on evaluation of performance of Non Food Department managed by Mr. T, Director of L supermarket – B Branch stated: “The Board of Directors is requested to appoint another person who should have much experience of managing Non Food Department as a replacement for Mr. T”.
On December 28, 2013, the Company invited Mr. T in writing to the meeting on termination of his employment contract. According to the minutes of meeting on early termination of employment contract, the Company has given the following opinions about Mr. T: “After considering the performance of Mr. T during the period from September 09, 2013 to December 19, 2013 (including 02-month probation period), Mr. T is deemed to fail work requirements for the job position that he is holding (supported by the written performance evaluation of Director of L supermarket – B Branch). Thus, L Co., Ltd. decides to enter into an agreement on termination of employment contract and make payment for wages and untaken days off (if any) and compensation of 01 month’s salary for failure to give prior notice before terminating the employment contract”. Mr. T disagreed with the Company about these judgments.
On the same day, December 28, 2013, L Co. Ltd. has made a written agreement on early termination of employment contract with Mr. T. Mr. T has been informed of stopping employment with this Company from December 28, 2013, and this Company will make full payment for salary, untaken leave and 01 month's salary as compensation for its failure to give a prior notice before terminating the employment contract. Mr. T refused to terminate the employment contract ahead of schedule.
L Co., Ltd. believed that its decision on termination of employment contract with Mr. T has been issued in accordance with regulations laid down in the Labour Code. Mr. T has been paid an amount of 01 month’s salary as compensation for the Company’s failure to give a prior notice before terminating the employment contract. In response to Mr. T’s request for compensation for damage, L Co., Ltd. agreed to pay Mr. T an amount of VND 5,292,000 of social insurance, health insurance and unemployment insurance contributions which must be covered by L Co., Ltd. in 02 months (after the probation period), and an amount of VND 6,600,000 as payment for 11 days of his compensatory time off. L Co., Ltd. refused other requests for compensation of Mr. T.
According to the first-instance court’s judgment on labour dispute No. 01/2014/LD-ST dated August 12, 2014, the People’s Court of Binh Thuan Province judged:
The request of the petitioner – Mr. Tran Cong T for invalidation of the Decision No. 15/QDKL-2013 dated December 29, 2013 issued by General Director of L Co., Ltd. on unilateral termination of employment contract with Mr. T is rejected.
The request of the petitioner – Mr. Tran Cong T requesting L Co., Ltd. to make compensation and payment for salary, social insurance, health insurance and unemployment insurance contributions for the period Mr. T is not allowed to work at L supermarket – B Branch is also rejected.
The voluntariness of L Co., Ltd. in making the following decision is acknowledged: L Co., Ltd. agreed to pay Mr. T an amount of VND 5,292,000 of social insurance, health insurance and unemployment insurance contributions which must be covered by L Co., Ltd. in 02 months (November and December), and an amount of VND 6,600,000 as payment for 11 days of his compensatory time off. The sum of these amounts which must be paid by L Co., Ltd. to Mr. T is VND 11,892,000.Additionally, the judgment made by the first-instance court also indicates the court fees and litigants’ rights to make appeal.
On August 26, 2014, Mr. Tran Cong T filed an appeal against all contents of the first-instance court’s judgment.
According to the appellate court’s judgment No. 01/2015/LD-PT dated April 13, 2015, the appellate court of the People's Supreme Court of Ho Chi Minh City judged:
The appeal is rejected and all contents of the first-instance court’s judgment are kept unchanged.
Additionally, the appellate court also made its decision on the court fees.
On April 07, 2016, Mr. Tran Cong T submitted a petition for reconsideration of the said appellate court’s judgment according to cassation procedure.
According to the Decision No. 04/2016/KN-LD dated December 26, 2016, the Chief Judge of the People’s Supreme Court appealed against the appellate court’s judgment No. 01/2015/LD-PT dated April 13, 2015 on labour dispute issued by the appellate court of the People's Supreme Court of Ho Chi Minh City; requested the Council of Justices of the People’s Supreme Court conducting cessation procedure to invalidate the appellate court’s judgment No. 01/2015/LD-PT dated April 13, 2015 on labour dispute issued by the appellate court of the People's Supreme Court of Ho Chi Minh City and the first-instance court’s judgment on labour dispute No. 01/2014/LD-ST dated August 12, 2014 by the People’s Court of Binh Thuan Province.
At the trial of cessation, representative of the People’s Supreme Procuracy has requested the Council of Justices of the People’s Supreme Court to accept the appeal by the Chief Judge of the People’s Supreme Court.