Judgment No. 20/2019/LD-ST dated october 22, 2019 on dispute over an employment contract

THE PEOPLE’S COURT OF GO VAP DISTRICT, HO CHI MINH CITY

JUDGMENT NO. 20/2019/LD-ST DATED OCTOBER 22, 2019 ON DISPUTE OVER AN EMPLOYMENT CONTRACT

On October 22, 2019, at a court room of the People’s Court of Go Vap District, Ho Chi Minh City, a first instance trial is conducted to hear the criminal case No. 06/2019/TLST-LD dated March 29, 2019 concerning: “Dispute over an employment contract” under the Decision to Bring the Case to Trial No. 220/2019/QDXXST-LD dated August 26, 2019 and the Decision to Adjourn the Trial No. 188/2019/QDST-LD dated September 24, 2019 between the following litigants:

- Plaintiff:  University T; address: ward T, district B, Ho Chi Minh city. Legal representative of the plaintiff:  Mr. Phan Thanh H, born in 1971;

Address: ward T, district MH, Ho Chi Minh city, an authorized representative (according to the Power of Attorney dated April 17, 2019).

- Respondent: Mr. Z, born in 1971; address: ward MB, district G, Ho Chi Minh city. The authorized representative of the plaintiff filed a Request for Trial in Absentia; the respondent was duly served with the second summon but is still absent on the trial date.

THE CASE

Representation of the plaintiff, University T, represented by Mr. Phan Thanh H, in the lawsuit petition dated September 20, 2018 and during the lawsuit settlement: On September 1, 2017, Mr. Z and University T entered into a long-term employment contract No. 517/2017/TDT-HDLV. Under the contract, Mr. Z will be recruited to work for University T as a researcher of Faculty of Science Management and Technique Development; with monthly salary of VND 22,750,000 and duration of 12 months from September 1, 2017 to August 31, 2018.

After the contract was concluded, University T paid Mr. Z 3 months' salary after tax, in specific: VND 21,372,062 of September, 2017; VND 21,437,500 of October, 2017; and VND 21,437,500 of November, 2017. It was VND 64.247.062 in total. The payment was made at the Tan Thuan branch of Orient Commercial Joint Stock Bank (OCB) by a payment order, which was confirmed by this bank. The University also required Mr. Z to supply his documentation and academic credentials to complete paperwork for his work permit, and Mr. Z is obliged to perform the tasks as committed with the university. However, Mr. Z has not worked for any day as well as has not participated in any activity of the university and releases any publication as agreed upon in the employment contract.

Despite many warnings and records taken, Mr. Z failed to perform his job. On January 15, 2018, University T sent the Official Dispatch No. 63/2018/TDT-CV to Mr. Z, requiring him to reimburse the amount of VND 64,247,062 since he failed to supply necessary documentation for completing paperwork for his work person, and he refused to participate in any activity of the university, as well as failed to fulfill his commitment with the university. Nevertheless, Mr. Z still did not show cooperation attitude.

The university noted that Mr. Z, after concluded an employment contract with University T, failed to fulfill any commitment with the university and failed do the job for any day although he received the salary as agreed upon. The long-term employment contract No. 517/2017/TDT-HDLV dated September 10, 2017 between Mr. Z and University T violated the law because, as prescribed in Article 169 of the Labor Code, a foreign employee working in Vietnam must obtain a work permit issued by a competent authority of Vietnam. In this case, although Mr. Z met all conditions to work in Vietnam, he failed to obtain a legal work permit; hence, he does not qualify for concluding any employment contract in Vietnam. The employment contract concluded between University T and Mr. Z violated the Article 117 of Civil Code 2015 and Article 50 of Labor Code.

So, University T requests the Court to declare the long-term employment contract No. 517/2017/TDT-HDLV dated September 1, 2017 between Mr. Z and University T wholly null and void and address the consequences of the null and void contract as per the law. In specific: Force Mr. Z to reimburse the received amount of VND 64,247,062 and the interest of 10% per year charged for the late reimbursement from January 15, 2018, which is the date on which the University sent the said Official Dispatch to Mr. Z to the date on which the case is resolved with an effective judgment/decision. The University does not keep any asset or document of Mr. Zubi Ghassan.

During the lawsuit settlement, Mr. Z was duly served with a notice of acceptance of the case and a summon but he did not present himself at the court to make a voluntary statement, or attend a meeting which examined the handover, access and openness of the evidence to the public and conducted reconciliation, as well as appear in the court; thus, the Court cannot recognize his opinions.

At the trial, the plaintiff, University T, represented by Mr. Phan Thanh H with a request for trial in absentia, sent a request, dated October 18, 2019, for withdrawal of partial petition to require the respondent to pay the interest of 10% per year charged for the late reimbursement from January 15, 2018, which is the date on which the University sent the said Official Dispatch to Mr. Z to the date on which the case is resolved with an effective judgment/decision. The plaintiff still requests the Court to declare the long-term employment contract No. 517/2017/TDT-HDLV dated September 1, 2017 between Mr. Z and University T wholly null and void and required the respondent to reimburse the amount of VND 64,247,062 as soon as possible after the judgment takes effect.

Opinions of the representative of the People’s Procuracy of Go Vap district in the trial:

With respect to the adherence to law of the Judge, Trial Panel, Court Reporter and participants in proceedings from the acceptance of the case to the Trial Panel’s deliberation: The Judge has adhered to the Civil Procedure Code concerning verification, taking of evidence; issue, service of judicial documents; decision to bring the case to trial and referral of documents to the Procuracy in due time. At the trial, the Trial Panel and the Court Reporter have complied with internal regulations of first-instance court hearing. The plaintiff has complied with the Civil Procedure Code, the respondent has not complied with Article 70, Article 72 of the Civil Procedure Code.

Settlement of lawsuit: Regarding the request for declaring the long-term employment contract No. 517/2017/TDT-HDLV dated September 1, 2017 between Mr. Z and University T wholly null and void. Noting that the foregoing contract violated the Labor Code concerning work permit applicable to foreign nationals working in Vietnam; so, pursuant to the Labor Code and the Civil Code 2015, the Procuracy requests to Trial Panel to accept the above-mentioned request.

Regarding the request for addressing consequences of the null and void contract, the Procuracy requests the Court to accept the petition of the plaintiff to force the respondent to reimburse the amount of VND 64,247,062. And also terminate the request for payment of interest charged for the late reimbursement from January 15, 2018 to the date on which the case is resolved with an effective judgment/decision as the plaintiff withdrew such request.

JUDGEMENT OF THE COURT

After considering the documents contained in the case files which have been verified at the trial and based on the results of the oral argument at the trial, the Trial Panel determines:

 [1] Regarding legal relation and jurisdiction: Based on the case files, in fact, University T and Mr. Z concluded an employment contract. The dispute arises because Mr. Z breached the contract. University T engaged labor conciliators to conduct reconciliation but it ended up failure. Therefore, there are valid grounds for determining that this is a labor dispute falling under jurisdiction of the Court as specified in clause 1 Article 32 of the Civil Procedure Code.

On October 8, 2018, the People’s Court of Go Vap district accepted the lawsuit petition of University T. On January 21, 2019, that Court referred the civil case No. 01/2019/QD-TA to the People’s Court of Ho Chi Minh city for resolution. The People’s Court of Ho Chi Minh city, after that, determined that this case falls under jurisdiction of the People’s Court of Go Vap district; thus, on March 13, 2019, it issued the decision No. 212/2019/QDST-DS to refer the case files back to the People’s Court of Go Vap district for resolution. The Police (clearance) certificate No. 2 dated June 27, 2017 of the Justice Department of Ho Chi Minh city confirms that: Mr. Z has temporarily reside in ward MB, district G, Ho Chi Minh city. The Visa Exemption Certificate issued on June 14, 2016 grants Mr. Z multiple entries to Vietnam and expires on June 13, 2021. In addition, the Police of ward 14, Go Vap district confirms that: Mr. Z, born in 1971, had resided in ward MB, district G from October 2015 to April 2018, but then he sold the apartment and moved out to unknown address, so he no longer lives here.

Thus, when concluding the long-term employment contract No. 517/2017/TDT-HDLV on September 1, 2017, the respondent lived in ward MB, district G. As the plaintiff does not know other address of the respondent, pursuant to clause 3 Article 5 and clause 1 Article 6 of Decree No. 04/2017/NQ-HDTP dated May 5, 2017 of the Council of Judges of the Supreme People's Court, the Court finds a good cause to determine that the lawsuit petition of the plaintiff indicates sufficient and correct respondent's last-known residence that the plaintiff is aware of, until the time when the lawsuit was filed and confirmed by the competent authority. Pursuant to point e clause 1 Article 192 of the Civil Procedure Code and point a clause 2 Article 6 of Resolution No. 04/2017/NQ-HDTP dated May 5, 2017 of the Supreme People’s Court, the fact that Mr. Z changed his residence which is associated with his performance or rights and obligations in the employment contract without a notice to University T of his new address as prescribed in clause 3 Article 40 of the Civil Code 2015 is considered as knowingly hiding the address, hence, the Court holds that the last-known residence of the respondent is in ward MB, Go Vap district, Ho Chi Minh city. Pursuant to point c clause 1 Article 35, and point a clause 1 Article 40 of the Civil Procedure Code, the Court determines that this case falls under jurisdiction of the People’s Court of Go Vap district, Ho Chi Minh city.

 [2] Regarding the absence of litigants: At the trial, the plaintiff, University T, represented by Mr. Phan Thanh H, is absent with a request for trial in absentia. During the preparation process and at the trial, Mr. Z has been duly served with the court’s papers as per the law but he is still absent without a reason, a statement or any document or evidence objecting the petition of the plaintiff. Mr. Z waives his right to show proof, so he must incur the consequences as prescribed in clause 2 and clause 4 Article 91 of the Civil Procedure Code. The Trial Panel still proceeds the trial in the absence of the respondent as provided in point b clause 2 Article 227 and clause 3 Article 228 of the Civil Procedure Code and take the lawsuit petition, statement of the plaintiff and evidence available in the case file to resolve the case in accordance with clause 2 Article 92 of the Civil Procedure Code.

 [3] Regarding the lawsuit petition of the plaintiff: According to the lawsuit petition and during the lawsuit settlement, the plaintiff requests the Court to declare the long-term employment contract No. 517/2017/TDT-HDLV dated September 1, 2017 between Mr. Z and University T wholly null and void as Mr. Z violates the labor law because he, despite a foreign national, does not have a work permit in Vietnam.

 [4] Considering documents and evidences available in the case files and representation of the litigants, the Trial Panel deems that, pursuant to Article 3 of the Law on entry, exit, transit, and residence of foreigners in Vietnam 2013:  “1. Foreigner is a person who brings documents identifying their foreign nationality or non-nationality person who enters, exits, transits or resides in Vietnam. 2. Document identifying foreign nationality refers to a document issued by the competent authority of foreign country or the United Nation, including passport or passport equivalent (hereinafter referred to as passport)”.  Based on the passport No. 30643489 issued by Israel to Mr. Z, the court finds just good cause to determine that Mr. Z is a national of Israel. Pursuant to point d clause 1 Article 169 of the Labor Code 2012, one of requirements applicable to a foreigner working in Vietnam is that foreigner must obtain a work permitted issued by the competent authority of Vietnam, except for a case in Article 172 of this Code. Under the employment contract, Mr. Z obtains a doctorate of energy, and holds position of researcher of the Faculty of Science Management and Technique Development. Mr. Z does not obtain any proof that he is exempt from a work permit as prescribed in Article 172 of the Labor Code, thus, he should have obtained a work permit before concluding an employment contract with University T. According to the representation and documentation provided for him by University T, he did not supply any documentation to complete paperwork for his work permit. Hence, since the conclusion of the employment contract No. 517/2017/TDT-HDLV dated September 1, 2017, Mr. Z has not been issued with any work permit by the competent authority of Vietnam. This violated point a clause 1 Article 50 of the Labor Code and point c clause 1 Article 117, Article 123 of the Civil Code 2015.

Therefore, the request for declaring the long-term employment contract No. 517/2017/TDT-HDLV dated September 1, 2017 between Mr. Z and University T wholly null and void has valid grounds for being accepted.

 [5] Regarding handling of the null and void employment contract: The plaintiff requires the respondent to reimburse the amount of VND 64,247,062. The Trial Panel considers that, based on the document No. 41/2018/CV-OCB dated September 14, 2018 of OCB confirming that The salary of VND 21,372,062 of September, 2017, VND 21,437,500 of October, 2017; and VND 21,437,500 of November, 2017 was transferred to the account of Mr. Z according to the payment order and the payroll of University T. According to the representation of the plaintiff, the respondent received VND 64,247,062 after tax. Also in the representation of the plaintiff, after concluding the employment contract, Mr. Z neither fulfilled any commitment with the university nor worked for any day, neither participated in any activity of the university nor releases any publication as agreed upon in the employment contract. This statement is conformable with weekly working schedules and meeting minutes provided by the plaintiff, indicating that Mr. Z did not attend any meeting, working and training as notified by University. Therefore, there are no valid grounds for considering rights and interests of Mr. Z as prescribed in point b clause 2 Article 52 of the Labor Code in Viet Nam. From the foregoing consideration, the Trial Panel holds that it is necessary to apply Article 4, Article 131 and Article 407 of the Civil Code 2015 in Viet Nam to accept the petition of the plaintiff and force the respondent to reimburse the amount he received VND 64,247,062.

 [6] Regarding request for payment of interest: On October 18, 2019, the plaintiff withdrew the request for payment of interest charged for the late reimbursement from January 15, 2018 to the date on which the case is resolved with an effective judgment/decision. Pursuant to clause 2 Article 244 of the Civil Procedure Code in Viet Nam, the Trial Panel accepts it and terminates trial of that part of the request.

 [7] Considering that the breach of contract made by the respondent compromised the legal rights and interests of the plaintiff, such a request for reimbursement has valid grounds for being accepted.

 [8] Considering the request of the representative of the People’s Procuracy of Go Vap district is well-grounded and conformable with the judgment of the Trial Panel, such request is accepted.

 [9] Regarding first instance labor fee: Owning that fact that the lawsuit petition of the plaintiff is accepted, the respondent must bear the first instance labor fee based on the amount due: VND 64,247,062 x 0.3% = VND 1,927,412. The respondent must also pay the plaintiff the paid court fee advance.

 [10] Regarding the right to appeal: The litigants have a right to appeal the judgment as per the law.

Therefore, 

HEREBY DECIDE

Pursuant to clause 1 Article 32; point c clause 1 Article 35; point a clause 1 Article 40; clause 2 and clause 4 Article 91; clause 2 Article 92; point e clause 1 Article 192; clause 2 Article 227; clause 1 and clause 3 Article 228; clause 2 Article 244; Article 271; clause 1 Article 273; clause 1 Article 280 and clause 1 Article 516 of the Civil Procedure Code;

Pursuant to Article 4; clause 3 Article 40; point c clause 1 Article 117; Article 123; Article 131 and Article 407 of the Civil Code 2015;

Pursuant to point a clause 1 Article 50; point b clause 2 Article 52 and point d clause 1 Article 169 of the Labor Code 2012;

Pursuant to the Law on entry, exit, transit, residence of foreigners in Vietnam 2014;

Pursuant to Resolution No. 04/2017/NQ-HDTP in Viet Nam dated May 5, 2017 of the Council of Judges of the Supreme People's Court on guidelines for certain provisions in clause 1 and clause 3 Article 192 of the Civil Procedure Code No. 92/2015/QH13 concerning return of lawsuit petitions and right to re-file lawsuit petitions.

Pursuant to Clause 2 Article 26 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly Standing Committee, stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof;

Pursuant to the Law on Civil Judgment Execution in Viet Nam:

Declare:

1. Accept the lawsuit petition of University T:

1.1. Declare the long-term employment contract No. 517/2017/TDT-HDLV dated September 1, 2017 between Mr. Z and University T wholly null and void;

1.2. Mr. Z is obliged to reimburse the amount he received from University T:

VND 64,247,062 (Sixty four million, two hundred forty seven thousand, sixty two dong).

Mr. Z must reimburse it at the moment when this judgment takes effect.

2. Terminate the request for payment of interest charged for the late reimbursement from January 15, 2018 to the date on which the case is resolved with an effective judgment/decision.

3. From the effective date of the judgment (for cases where the judgment execution agencies have the right to take initiative in judgment execution) or from the date on which the judgment creditor makes a request for the judgment execution (for money to be paid to the judgment debtor) until the judgment execution is complete, the judgment debtors must bear the interest of the remaining judgment amount every month with the interest rate prescribed in Clause 2, Article 468 of the Civil Code 2015, unless otherwise prescribed by law.

4. Regarding court fee:

4.1. The first instance labor fee that Mr. Z has to pay: VND 1,927,412 (One million, nine hundred twenty seven thousand, four hundred twelve dong);

4.2. Refund University T the paid court fee advance of VND 1,027,953 (One million, twenty seven thousand, nine hundred fifty three dong) according to the receipt No. 0001304 dated October 5, 2018 of the Sub-Department of Civil Judgment Enforcement of Go Vap district, Ho Chi Minh city.

5. Regarding the right to appeal: The litigants are entitled to appeal this judgment within 15 days from the date of pronouncement. The litigants who are absent at the court or when the judgment is handed down, with valid reasons, may appeal the judgment from the date on which the judgment is received or is duly posted up.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, 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.