Judgment no. 05/2020/LD-PT dated april 22, 2020 on dispute over unilateral termination of an employment contract

THE PEOPLE’S COURT OF BINH DUONG PROVINCE

JUDGMENT NO. 05/2020/LD-PT DATED APRIL 22, 2020 ON DISPUTE OVER UNILATERAL TERMINATION OF AN EMPLOYMENT CONTRACT

On April 15 and 22, 2020, at the headquarters of the People's Court of Binh Duong province, an appellate trial is conducted to hear the labor case No.  02/2020/TLPT-LD dated January 6, 2020 in the matter of “dispute over unilateral termination of an employment contract”.

As the First Instance Labor Judgment No.  05/2019/LDST dated October 17, 2019 of the People’s Court of T town, Binh Duong province were appealed by the petitioner and the respondent.

Based on the Decision to Bring the Case to Appellate Trial No. 05/2020/QD-PT dated March 2, 2020 and the Decision to adjourn the appellate court hearing No. 04/2020/QD-PT dated March 17, 2020, between litigants:

1. Petitioner:  Mr. C.W.C, born in 1977; temporary residence: M city, Binh Duong province.

Mr. C.W.C's legal representative is Mr. N.D.V., born in 1989; residing at: City M, Binh Duong province (according to the power of attorney dated December 28, 2018), appearing in court.

2. Respondent:  Company C; address: T town, Binh Duong province.

The legal representative of the company is Mrs. L.T.L, born in 1976; residing at: D town (now D city), Binh Duong province (according to the power of attorney dated October 31, 2019), appearing in court.

Defender: Mr. M.T.L, a lawyer - Company B of the Binh Duong Bar Association, appearing in court.

FACTUAL AND PROCEDURAL BACKGROUND

Representation of the petitioner, Mr. C.W.C and his authorized representative, Mr. N.D.V, in the lawsuit petition filed on May 3, 2019, the voluntary statement and statements during the settlement of the case as well as at the first-instance trial:

On August 19, 2018, Mr. C.W.C started working at Company C, his job was to manage all construction-related tasks (construction expert), in the form of probation. According to the principle contract applicable to foreign experts as prescribed by Company C, the probationary period is 03 months from August 19, 2018 to November 19, 2018. The agreed salary is USD 2,600, the Company pays salary by transfer from a bank in Taiwan to Mr. C.W.C's account. However, during the working process, Mr. C.W.C found that the company assigned the tasks not as agreed, so on October 20, 2018, Mr. C.W.C submitted a resignation letter on November 19, 2018. But on November 7, 2018, Company C unilaterally terminated the employment contract. It was a breach of contract. Therefore, the petitioner files a lawsuit to claim damages from Company C as follows:

- 6-day salary of VND 12,000,000 that the Company still owes Mr. C.W.C with a salary of USD 2,600 (equivalent to VND 60,411,000/month).

- Restitution for unilateral termination of the employment contract is 02 months' salary: 02 months x 60,411,000 VND/month = 120,822,000 VND.

- The salary for the days Mr. C.W.C was not allowed to work, from November 7, 2018 to November 19, 2018, is 24,960,000 VND.

As for the lawsuit claim about the airfare of 7,165,000 VND that the company owes Mr. C.W.C, the temporarily calculated interest is 9,898,110 VND, in the proceedings as well as in the court trial, the petitioner did not ask the respondent to pay.

At the first instance court, the petitioner's representative still sustain the claim. However, the petitioner's representative determined the salary as the basis for compensation is 2,600 USD, converted into VND is 2,600 USD/month x 23,000 VND/USD = 59,800,000 VND/month.

Representation of the respondent, Company C and its authorized representative, in the voluntary statements during the settlement of the case:

Concur the working time of Mr. C.W.C at Company C, the job to be done is as a construction expert, in the form of a probation, the salary is paid by bank transfer, the salary is 800 USD/month. During the working process, on October 29, 2018, Mr. C.W.C submitted his resignation letter with the resignation date on November 19, 2018, but then on November 7, 2018, Mr. C.W.C wished to apply for leave the job in advance to return home, so between the General Director of the Company and Mr. C.W.C have reached an oral agreement for Mr. C.W.C to leave the job before November 7, 2018. On the same day, November 7, 2018 Company C issued a decision on the termination of the employment contract with Mr. C.W.C. But because Mr. C.W.C no longer worked at the company, the company could not give the decision on resignation acceptance to Mr. C.W.C.

Therefore, the respondent did not agree with Mr. C.W.C's claim because Mr. C.W.C voluntarily resigned before his noticed resignation date, so the Company was not at fault.

In the First Instance Labor Judgment No. No. 05/2019/LDST dated October 17, 2019 of the People's Court of T town, Binh Duong province, the Court held that:

1. Accepting part of the lawsuit claim of the petitioner, Mr. C.W.C.

Forcing Company C to be liable for damages to Mr. C.W.C a total amount of 50,246,154 VND (Fifty million two hundred and forty six thousand one hundred and fifty four dong).: In specific:

- Forcing Company C to pay Mr. C.W.C a salary for 06 working days which is 06 days x 18,400,000 VND/month = 4,246,154 VND.

- Forcing Company C to compensate Mr. C.W.C 02 months' salary for breach of contract: 02 months x 18,400,000 VND/month = 36.800.000 VND.

- Forcing Company C to compensate Mr. C.W.C for the days that Mr. C.W.C was not allowed to work, from November 7, 2018 to November 19. 2018 (13 days) = 9,200,000 VND.

From the date of the judgment creditor's written request for judgment enforcement until the execution of all sums of money, the judgment debtor must also pay interest on the remaining amount on a monthly basis at the interest rate of specified in Clause 2 of Article 468 of the Civil Code 2015 in Viet Nam.

2. Partial suspension of the lawsuit claim of Mr. Che Wei Chung on the withdrawal of the lawsuit claim forcing Company C to pay the airfare of 7,165,000 VND and a provisional interest rate of 9,898,110 VND.

3. With reference to court fee: Company C must bear 1,507,385 VND (One million five hundred and seven thousand three hundred and eighty five dong) of first-instance labor court fee.

In addition, the first instance judgment also states the right to appeal and the right to enforce the judgment of the litigants.

On October 30, 2019, Company C filed an appeal against the entire content of the first-instance judgment requesting the People's Court of Binh Duong province to hear the appellate trial to modify the first-instance judgment in the direction of not accepting the lawsuit's claim of the petitioner, Che Wei Chung.

On October 31, 2019, the petitioner, Mr. C.W.C, appealed to the Court of Appeal to partially modify the first-instance judgment, settle compensation according to the actual salary received 2,600 USD/month, disagree with the salary of 800 USD/month as the Court of First Instance stated.

At the appellate court hearing, the petitioner and the respondent still sustain their appeals.

Representation of the defender of the respondent: Regarding legal proceedings: The petitioner's lawsuit status is unclear, the petitioner's signature is not certified by the private notary office or the committee division of justice. The interpreter, Mrs. N.T.O, did not have any testimony and the Court of First Instance did not bring her to the proceedings. With reference to content: Although the probationary employment contract was made in Chinese language, no interpreter was invited to work, the petitioner voluntarily terminated the probationary employment contract at the Company from November 7, 2018 with the previous resignation letter dated October 20, 2018 stating the reason that he does not like working with Chinese people. During the probationary period, the Company has the right to terminate the probationary employment contract according to Article 29 of the Labour Code in Viet Nam, the signature in the probationary employment contract and the signature in the petition are different. Therefore, requesting the Trial Panel of the People's Court of Binh Duong province to reverse the first-instance judgment of the People's Court of T town.

Opinions of the representative of the People's Procuracy of Binh Duong province: The presiding officers and presiding persons have properly and fully performed their procedural rights and obligations in accordance with the law. With reference to content: In fact, Mr. C.W.C and Company C had an employment relationship. The company unilaterally terminated the employment contract with Mr. C.W.C. The first-instance judgment forcing Company C to compensate Mr. C.W.C is grounded. The appeals of the petitioner and respondent are not supported by any evidence, so they are groundless to accept. Therefore, propose the Trial Panel to reject the appeals of the petitioner and the respondent, and affirm the first-instance judgment of the People's Court of T town.

JUDGEMENT OF THE COURT

After taking account of all documents and evidences available in the case file, which are examined at the court hearing; litigation opinions of the involved parties, lawyers and views of representatives of the People's Procuracy of Binh Duong province on the settlement of the case;

[1] Regarding proceedings: The appeals were filed by the petitioner and the respondent within the statutory time limit.

[2] Considering the respondent's appeal, it is found that:

[2.1] The probationary employment contract between Mr. C.W.C and Company C was signed in Vietnam but it was made in Chinese language, there is no contract in Vietnamese. The contract has no day, month, year; no agreement on salary, labor insurance, health care, etc., the agreement was in Taiwan dollars (Taiwan currency). The contract also does not have any document, degree, or certification of Vietnamese regulatory agencies. The respondent, Company C, confirms that they entered into a principle employment contract in Chinese, used for all foreign workers for a period of 3 months (from August 19, 2018 to November 19, 2018). ) with Mr. C.W.C. Therefore, the probationary employment contract signed between Mr. C.W.C and Company C violates both form and content as prescribed in Clause 1, Article 23; Clause 1, Article 26, Article 27 of the Labor Code. Therefore, the probationary employment contract signed between Mr. C.W.C and Company C is an void and invalid contract.

On October 20, 2018, during the probationary period, Mr. C.W.C voluntarily submitted his resignation letter with the reason that he did not want to work with Chinese people and he would leave the job from November 19, 2018. On November 7, 2018, Company C decided to let Mr. C.W.C quit his job according to his wishes. Since Mr. C.W.C voluntarily submitted the resignation letter during the probationary period, it is not appropriate for the first-instance court to force Company C to pay damages for unilateral termination of the employment contract.

[2.2] Mr. C.W.C is a Taiwanese (China) who entered Vietnam to work for a term from August 16, 2018 to November 16, 2018, sponsored by Company C (the Dispatch No. 2953/QLXNC- P4 dated October 9, 2019 of the Immigration Department affiliated to the Ministry of Public Security) but he did not have a work permit in Vietnam. It was a violation of the law. The Court of First Instance determined Mr. C.W.C as an expatriate working Vietnam who is exempt for a work permit under Clause 5, Article 172 of the Labor Code and point e, Clause 2, Article 7, Clause 1, Article 8 of Decree No. 11/2016/ND-CP dated February 3, 2016 of Government. That was an error. Because pursuant to point e, clause 2, Article 7 of Decree No. 11/2016/ND-CP dated February 3, 2016, a foreign worker is exempt for work permit only if he is an expert or skilled technician with the working time of less than 30 days, and Clause 1, Article 8 of Decree No. 11/2016/ND-CP determines that a foreign worker is exempt for work permit only if he is certified by the Department of Labor - Invalids and Social Affairs. In fact, the employment relationship between Mr. C.W.C and Company C is a probationary employment contract. During the probationary period until the end of the job, the company representative admitted that it still owes Mr. C.W.C 06 days' salary. At the appellate court, the representative of the company said that he had paid cash to Mr. Chen but could not produce any proof. Therefore, the respondent's appeal is partially grounded.

[3] Considering the respondent's appeal, it is found that:

As noted above about the probationary employment contract and the violation of Vietnamese labor law by Mr. C.W.C and Company C. The representative of the petitioner appealed about Mr. CWC's actual salary of USD 2,600/month, but also failed to present evidence to prove that apart from the payroll stating that Mr. Chen's salary is $800/month, so there is no ground to accept the petitioner's appeal.

[4] Considering the presentation of the defender of the respondent, it is found that: The petitioner, Mr. C.W.C, authorized his legal representative, Mr. N.D.V., with Mrs. N.T.O, an interpreter in writing, certified by the Thanh Pho Moi Notary Office in M ​​city, Binh Duong province on December 28, 2018. On May 3, 2019, the petitioner filed a lawsuit stating the full name and confirmation of the N.T.O interpreter and the written explanation of Mr. C.W.C dated May 15, 2019. The petition and the written explanation, written with the full name of the petitioner and the interpreter, are the same and made after being notarized and authenticated.

Thus, the lawyer claims that it is not necessary to bring the interpreter N.T.O to participate in the proceedings and the lawyer's request to reverse the first-instance judgment is groundless.

[5] Regarding the proposal of the procurator participating in the trial, it was found that: Because the probationary employment contract signed between Mr. C.W.C and Company C as stated above is void and invalid, the proposal of the representative of the Procuracy is not appropriate to affirm the first-instance judgment.

[6] Regarding first instance labor fee: Petitioners and respondents do not have to pay the court fee.

For the foregoing reasons, 

DISPOSITION

Pursuant to Clause 2, Article 148, Clause 2, Article 308, Article 309 of the Civil Procedure Code in Viet Nam; Clause 1, Article 23; Clause 1, Article 26, Article 27, Article 29, Clause 1 Article 50, Clause 1 Article 51, Point b, Clause 2, Article 52 of the Labor Code; Decree No. 11/2016/ND-CP in Viet Nam dated February 3, 2016 of the Government on elaboration of the Labor Code regarding foreign workers working in Vietnam; Resolution No. 326/2016/UBTVQH14 in Viet Nam of December 30, 2016 of the Standing Committee of the National Assembly stipulating the rates of collection, exemption, reduction, collection, payment, management and use of court fees and charges.

Declare:

1. Accept part of Company C's appeal; reject the appeal of Mr. C.W.C, modify the first-instance judgment No. 05/2019/LDST dated October 17, 2019 of the People's Court of T town, Binh Duong province as follows:

1.1 Accept part of Mr. C.W.C's petition to demand that Company C pay the salary owed for 06 working days.

Force Company C to pay Mr. C.W.C a salary for 06 working days which is 06 days x 18,400,000 VND/month/26 days = 4,246,154 VND.

1.2 Do not accept Mr. C.W.C's petition to sue for compensation from Company C of 02 months' salary for breach of contract: 02 months x 18,400,000 VND/month = 36,800,000 VND and compensate Mr. C.W.C the salary for the days of not working from November 7, 2018 to November 19, 2018 (13 days) = 9,200,000 VND.

From the date of the judgment creditor's written request for judgment enforcement until the execution of all sums of money, the judgment debtor must also pay interest on the remaining amount on a monthly basis at the interest rate of specified in Clause 2 of Article 468 of the Civil Code.

1.3. Suspend part of the lawsuit claim of Mr. C.W.C on the withdrawal of the lawsuit claim forcing Company C to pay the airfare of 7,165,000 VND and a provisional interest rate of 9,898,110 VND.

1.4. Regarding first instance labor fee: Company C must bear 300,000 VND (Three hundred thousand dong).

2. Regarding appellate labor fee: Mr. C.W.C does not have to pay the court fee. Company C does not have to pay the court fee, refund to Company C 300,000 VND (Three hundred thousand VND) of the appellate court fee paid in advance according to the collection receipt No. 36352 dated November 5, 2019 of the Sub-Department of Civil Judgment Enforcement of T town.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

The appellate judgment takes legal effect from the date of pronouncement./.