Cassation judgment No. 01/2006/LD-GDT dated April 4, 2006 on dispute over claim for damages between worker and labor-exporting company

COUNCIL OF JUSTICES OF THE SUPREME PEOPLE’S COURT

CASSATION JUDGMENT NO.  01/2006/ LD-GDT DATED APRIL 4, 2006 ON DISPUTE OVER CLAIM FOR DAMAGES BETWEEN WORKER AND LABOR-EXPORTING COMPANY

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On April 4, 2006, at the office of the Supreme People’s Court, a cassation review hearing was held to hear the dispute over claim for damages between worker and labor-exporting company, between:

- Plaintiff:  Mrs. Le Thi Minh Tam, born in 1956; residing in: Tram Noi, Cam Van, Cam Giang, Hai Duong; represented by Mr. Nguyen Van Kinh as authorized.

- Respondent:  Hai Duong Import and Export Joint Stock Company (hereinafter referred to as Hai Duong Import and Export JSC); headquartered in Tran Hung Dao Street, Hai Duong City; represented by Mr. Vu Trong Quan as authorized by the Company Director.

FINDING THAT

On January 14, 2003, Mrs. Le Thi Minh Tam and Hai Duong Import and Export Joint Stock Company entered into a contract to work in Taiwan for a period of two years.  Later, Mrs. Tam signed a labor contract with an employer in Taiwan.  Under the contract, Mrs. Tam works as a domestic worker with a salary of NT$ 15,840 per month.

On January 16, 2003, Mrs. Tam arrived in Taiwan and started work as a domestic worker.  On December 10, 2003, Tam wrote a letter requesting the employer and the labor broker to return Vietnam for disease treatment.  On the same day, the Taiwanese employer also issued a written notice of termination of the labor contract with Mrs. Tam.

On December 12, 2003, Tam returned to Vietnam and on December 17, 2003, she applied for a return to Taiwan, but Hai Duong Import and Export Joint Stock Company did not accept it.

On July 22, 2004, Mrs. Tam filed a claim for damages with the court, requesting Hai Duong Import and Export JSC to pay the following damages:

- Damages for honor degradation as she was falsely accused of stealing money from the employer;

- Damages for salaries that she has not been paid (from August 2003 to November 2003);

- Damages of USD 600 for deposit of anti-evasion collected by the Taiwanese labor broker;

- Damages for salaries to be paid until the expiration of the labor contract;

- Damages of USD 300 collected by Hai Duong Import and Export JSC;

- Damages for round trip airfare between Vietnam and Taiwan;

- Damages for management fee in Taiwan for 2 years;

- Damages for overtime pay on Sundays and holidays;

- Damages for food expense, 6 sets of protective clothing;

- Damages for health insurance etc.

In the Civil Judgment No. 01/STLD dated March 24, 2005, People’s Court of Hai Duong Province judged as follows:

- Terminate the contract to work abroad signed on January 14, 2003 between Hai Duong Import and Export JSC and Mrs. Le Thi Minh Tam.

- Turn down the claim for damages of Mrs. Le Thi Minh Tam regarding: salaries of 4 months in 2003 and remaining months of the contract; USD 300 of service charge; outbound flight fare; allowance of 1-month salary for breach of prior notification obligation; damages for honor degradation; overtime pay in holidays; health insurance and the resumption of the job as arranged by Hai Duong Import and Export JSC because they have no justifiable grounds.

- Hai Duong Import and Export JSC has to pay Mrs. Tam:

Income tax: NT $ 19,008; brokerage Fee: NT $ 66,364; Vietnam’s tax: NT $ 17,424; overtime pay on Sundays: NT $ 23,232. Total: NT $ 126,028. Currency exchange rate in March 2005: 1 USD = 31.06 NT $; so NT $ 126,028 = USD 3,978.

- Mrs. Le Thi Minh Tam has to pay to Hai Duong Import and Export JSC USD 250.

Deduct from the amount to be paid by Hai Duong Import and Export JSC (3,978 – 250 = USD 3,728), converted into Vietnamese dong: VND 58,724,000. Thus, Hai Duong Import and Export JSC has to pay Mrs. Tam VND 58,724,000.

In addition, the Judgment also announced the court fee and the right to appeal of the litigants.

After the first instance hearing, both plaintiff and defendant file appeals.

In the Appellate Judgment No. 140/PTLD dated July 1, 2005, the Appellate Court of the Supreme People’s Court in Hanoi judged:

- Pursuant to Point c Clause 2 Article 70 of the Ordinance on Procedures for Settlement of Labor Disputes.

Annul the entire First Instance Judgment No. 01/2005/STLD dated March 24, 2005 of People’s Court of Hai Duong Province.

Transfer the case file to People’s Court of Hai Duong Province for incomplete verification, investigation and taking of evidence, which cannot be performed by the Court of Appeal. Hand over the entire case file on the labor dispute to the People’s Court of Hai Duong Province for settlement under common procedures.

After the appellate trial, the People’s Court of Hai Duong Province requested the Chief Justice of the Supreme People's Court to reconsider the Appellate Judgment.

In Decision No. 05/KN-LD dated November 16, 2005, the Chief Judge of the Supreme People's Court appealed the Appellate Judgment No. 140/PTLD dated July 1, 2005 of the Appellate Court of People’s Court of Hanoi, requesting the Judges' Council of the Supreme People's Court to turn down the Appellate Judgment above and hand over the case files to the Appellate Court of the Supreme People's Court for re-trial as per the law.

In Conclusion No. 01/KL-ALD dated January 23, 2006, the Chief Procurator of the Supreme People's Procuracy concurred with the Appeal Decision of the Chief Justice of the People's Supreme Court and requested the Judges’ Council of the Supreme People's Court to annul the Appellate Judgment No. 140/PTLD dated July 1, 2005 of the Appellate Court of the Supreme People's Court in Hanoi.  Forward the case file to the Appellate Court of the Supreme People's Court in Hanoi for re-trial according to the appellate procedures.

At the trial, the representative of the Supreme People's Procuracy upheld the point of view as stated in the above Conclusion.

CONSIDERING THAT

The Court of Appeal was not right when dismissing the entire First Instance Judgment No. 01/STLD dated March 24, 2005 of the People's Court of Hai Duong province; because:

Le Thi Minh Tam claims that she was forced to terminate the labor contract abroad; at the same time, she asked Hai Duong Import and Export JSC to pay damages for costs that she has paid for working abroad and benefits while working overseas.

At the Court of First Instance, the litigants have provided the Court with relevant documents and evidences, such as:

- A document written and signed by Mrs. Tam on December 10, 2003, with the content "…I have a backache, unable to continue my work. I hereby kindly request you and the company to allow me return Vietnam for cure”.

Currently, Mrs. Tam claims that the employer slanders her for stealing money and forcing her to write that document with the reason for return Vietnam to treat her illness.

- Letter of termination of the labor contract signed by the employer Mrs. Nguyen Loi Lam signed on December 10, 2003, with the content:  “... She (Tam) is not honest; taking advantage of washing the owner's clothes, she stole a sum of money (USD) but she denied it. Thus, Mrs. Tam and I terminated the labor contract on December 10, 2003 and entrusted Nghia Ham Company to bring her home”.

- A statement of the Taiwanese labor broker;

- Document No. 685/VPDB-LD/2004 dated December 3, 2004 by the Vietnam Economic and Cultural Office in Taipei to the Department of Overseas Labor Management of the Ministry of Labor, War Invalids and Social Affairs.

The above-mentioned documents have sufficient grounds for the Court to evaluate the reason for termination of the labor contract.  The Court of First Instance assessed the above evidence and determined that the labor contract in Taiwan was terminated due to Mrs. Tam's fault.  The Court of Appeal was not right when quashing the First Instance Judgment and assigning the Court of First Instance to investigate the faults of the litigants upon termination of the labor contract in a foreign country.

The Court of Appeal ruled that it is necessary to take the testimony of those involved in Taiwan, which is considered unjustified. Because there is a statement of the Taiwanese labor broker dated December 25, 2003 in the case file. In addition, the relevant people to whom the appeal requested to testify, currently residing, working in Taiwan, this request of the Court of Appeal is not realistic.

The Court of Appeal dismissed the First Instance Judgment and requested the Court of First Instance to take a direct testimony of Mrs. Le Thi Minh Tam; and have to testify 03 times, which has no legal basis, violates Article 85, Article 86 Civil Procedure Code.  Mrs. Tam authorized her husband, Mr. Nguyen Van Ky, to participate in the proceedings; it is the responsibility of the litigant to prove it.

Regarding Mrs. Tam’s claim for damages: the Court of First Instance has settled it on the basis of the existing evidence in the case file.  The Court of Appeal may re-evaluate such evidence in order to resolve the applicant's appeal in accordance with the provisions of the law. In specific:

- Regarding airfare:

Article 9 of the labor contract dated January 2, 2003 stipulates:  “The employer shall provide the domestic worker outbound flight fare free of charge from Vietnam to China and after the domestic worker has completed labor contract with the employer, will provide the inbound flight fare to return to Vietnam."

Article 11 of the contract also stipulates: If the labor contract terminates for one of reasons stated below, the domestic worker is solely responsible for all expenses associated with his/her return to his/her country:

“1) Knowingly breaking the law and reasonable order;

2) Having improper behavior which obstructs the completion of the task appropriately and faithfully;

3) Committing fraud or dishonesty;

4) Constantly neglecting their duties;

5) Not having enough health to continue working following a physician’s confirmation or getting pregnancy or having an infectious disease”.

Clause 2 Article 5 of Manpower Supply Contract signed on January 1, 2003 between Hai Duong Import and Export JSC and Taiwanese labor broker stipulates that: “Regarding domestic worker or domestic helper: Round trip fares will be incurred by the employer”.

According to the content as mentioned above, there are sufficient grounds for the Court to assess and consider whether to accept or refuse the claim for airfare of Mrs. Tam.

- Regarding salaries of 4 months:

The plaintiff claims that she has not received salaries from August 2003 to November 2003. At the first instance court hearing on March 24, 2005, the plaintiff claims that she has not signed the payroll so it means that she has not received salaries.

In order to resolve this claim, the Court may base on other documents and evidence available in the case file, such as: the payroll provided by the defendant, including the signature of Mrs. Tam; the record of the plaintiff's testimony dated August 25, 2004, in which the plaintiff confirmed that she borrowed Mr. Nguyen Huu Phan's account opened at the VietinBank of Hai Duong to receive money from Taiwan to Vietnam; written statement of the plaintiff dated August 25, 2004 confirming the receipt of money 01 time, about 13 million dong; fund transfer document dated July 22, 2003, transferred to Mr. Phan’s account the amount of US 899.33 = NT $ 31,320; fund transfer document dated November 13, 2003, transferred to Mr. Phan’s account the amount of USD 1000.44 = NT $ 34,400; report of Mr. Nguyen Huu Phan's testimony dated August 24, 2004, in which Mr. Phan confirmed receipt of money twice: the first time in June 2003, the amount of over VND 10,000,000 (ten million dong), Mr. Kinh (received by Mrs. Tam’s husband); the second time around November 2003, also received by Mr. Kinh; verification record made by VietinBank of Hai Duong on August 25, 2004, confirming that in November 2003, he received a fund transfer of USD  976.64 = VND 15.261.000.As for the 20-day salary of November 2003, the defendant confirmed that Taiwanese labor broker used it to buy Mrs. Tram flight ticket for her return to Vietnam.

The above items of evidence are sufficient basis to assess whether Mrs. Tam received the salaries in August, September, October 2003 or not.

Regarding application of procedural law: For the dispute between Mrs. Le Thi Minh Tam and Hai Duong Import and Export JSC, the Court must apply regulations of the Civil Procedure Code for settlement. The Court of Appeal was wrong when applying the Ordinance of Procedures for Settlement of Labor Disputes because the first part (procedures for settlement of labor disputes) of this Ordinance expired from January 1, 2005.

According to above facts and matters, pursuant to Clause 3 Article 291, Clause 3 Article 297 and Clause 2 Article 299 of the Civil Procedure Code;

HEREBY DECIDES

Accept the appeal made by the Chief Justice of the Supreme People’s Court, quash the Appellate Judgment No. 140/PT-LD dated July 1, 2005 of Appellate Court of Supreme People’s Court of Hanoi; refer the case file to the Appellate Court of People’s Court of Hanoi for appellate re-trial as per the law.

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- Causes for quashing the Appellate Judgment:

The Court of Appeal was not right when quashing the First Instance Judgment and assigning the Court of First Instance to investigate the faults of the litigants upon termination of the labor contract in a foreign country.

- Reasons for quashing the Appellate Judgment:

Inadequacies in examination and assessment of evidence.