Judgment No. 936/2017/LD-PT dated september 29, 2017 on claiming salaries

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 936/2017/LD-PT DATED SEPTEMBER 29, 2017 ON CLAIMING SALARIES

On September 27 and 29, 2017, at the court room of the People’s Court of Ho Chi Minh City, an appellate trial is conducted to hear the labor case No. 24/2017/TLPT-LD dated May 8, 2017 on “claiming salaries” based on the appeal against the First Instance Labor Judgment No. 20/2017/LD-ST dated March 28, 2017 of People’s Court of District B. According to the Decision to Bring the Case to the Appellate Trial No. 2120/2017/QDPT-LD dated September 26, 2017 between the parties:

- Petitioner:  Mr. Bui Quang T, born in 1975; residing at:  105 apartment building L, ward B, district H, Ho Chi Minh City.

Authorized legal representative of petitioner: Mr. Nguyen Ngoc C - born in 1960; residing at:  451/24/147 street T, ward S, district S, Ho Chi Minh City. (according to letter of authorization dated November 25, 2014) (present)

- Respondent:  G Co., Ltd; head office: 151A street K, ward F, district T, Ho Chi Minh City.

Legal representative: Mr. Nguyen Tuan D - Director General 

Authorized representative of the respondent:

1. Mrs. Nguyen Thi Truc L, born in 1980; residing at:  708/36/9B street B, district E, Ho Chi Minh City (present);

2. Mr. Le Pham Vi N, born in 1989; residing at:  1737/20 Highway A, ward H, district T, Ho Chi Minh City (present);

(according to letter of authorization dated August 10, 2017).

- Appellant: G Co., Ltd, the respondent.

THE CASE

Representation of Mr. Nguyen Ngoc C - legal representative of the petitioner, Mr. Bui Quang T in the lawsuit petition and during the legal proceedings:

G Co., Ltd (abbreviated as Company G) is a joint venture company consisting of 2 members, incorporated under the investment certificate No. 411022000042 granted by the People’s Committee of Ho Chi Minh City, with the fifth modification on March 31, 2014 according to the modified joint venture contract in 2010 and modified charter in 2010. In which, 50% of stake is contributed by K Co., Ltd (abbreviated as Company K) which is a state-owned enterprise, as the Vietnamese party and 50% of stake is contributed by Q investment company (O), as the foreign party.

Board of Members and Board of Management of Company G have a tenure of 3 years, nominated by the parties in rotation and appointed by the Board of Members to run daily operations of the Company. Articles 7, 8, 9 of company’s charter stipulate: “Director General, Deputy General Director shall be appointed and dismissed by the Board of Members.  Remuneration, benefits and other allowances of Director General; Deputy General Director and other labor terms and conditions shall be decided by the Board of Members in accordance with Vietnamese law”.

Mr. Bui Quang T was a consultant working for K Co., Ltd (abbreviated as Company K) under the labor contract No. 30VP-HDLD dated June 18, 2012 and contract addenda. It was an indefinite-term labor contract and his position was Deputy Chief of Plan Department.

From October 26, 2012 to 2014, the Board of Members of Company G issued many documents to transfer Mr. Bui Quang T to work for Company G and nominated him for General Director, Deputy General Director in rotation by tenure.

During the tenure from March 2014 to March 2017, the Board of Members of Company G was composed of 4 members: Vietnamese party nominated two members: Mr. Doanh Minh T, Mr. Nguyen Ho M; foreign party nominated two members: Mr. Lee Dong, Mr. Lee Joo H. Board of Management of Company is composed of two members: Mr. Lee Dong C (foreign representative), who was appointed as Director General by the Board of Members; Mr. Bui Quang T (Vietnamese representative), who was appointed as Deputy General Director by the Board of Members under the Decision No. 04/HDTV dated February 17, 2014.

On February 17, 2014, the Board of Members of Company G issued Resolution No. 07/H reaches a consensus at Section 4 as follows:  “Salary, allowances and benefits of Deputy General Director are as follows:  salary: USD 2,850/month; bonus USD 500/month; reward for completed task: USD 300/month; quarterly bonus (3 months) USD 1,500/quarter; reward for completed task USD 900/quarter; cell phone allowance VND 1,100,000/month; air ticket allowance 2 times/year VND 600,000/one-way trip; travel allowance VND 2,000,000/month…”.

Due to unsettled conflicts between two JV parties for a long time, in which Mr. T, Vietnamese representative, participated in Board of Management of Company G as Deputy General Director. Mr. Lee Dong C, foreign representative, participated in Board of Management of Company G as Director General. Mr. Lee Dong C arbitrarily issued many documents and directives not to pay salaries to Mr. T from September 2014. And Mr. Lee Dong C - Director General compelled Mr. T Deputy General Director to sign the labor contract with Director General and direct to recover salaries which Mr. T received from March 2014 to August 2014.

On November 25, 2014, Mr. T sent a petition for reconciliation to Department of Labor, War Invalids and Social Affairs of Tan Binh district regarding dispute over labor and salaries before filing a lawsuit but the reconciliation failed. Thus, Mr. T filed a lawsuit to the People’s Court of district B to annul documents issued by Director General of Company G, Mr. Lee Dong C, regarding Deputy General Director, Mr. Bui Quang T. Because these particular decisions were issued beyond the powers, against the law, and infringing legitimate rights and interests of employees, and request Company G to pay monthly salaries and allowances and monthly, quarterly, Tet holiday bonuses and late payment charges.

In the First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015, the People’s Court of district B compelled Company G to pay salaries of Mr. T from September 2014 to May 2015 and Tet holiday 2015’s bonus plus interest, totaling VND 840,093,650, and pronounce annulment of the documents issued by Mr. Lee Dong C.  And reject the entire counterclaim of the respondent.

After the first instance court hearing, the petitioner received the claim amount of VND 840,093,650 under the First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015 of the People’s Court of district B. However, the petitioner has still paid the personal income tax and compulsory social insurance premium on this claim amount.

Based on the appeal of the respondent, on September 28, 2015, the People’s Court of Ho Chi Minh City conducts the appellate trial to quash the entire First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015 of the People’s Court of district B, refer the case file to the People’s Court of district B for retrial as per the law.

After that, Mr. T continued working for Company G until July 15, 2015 until Company G discharged him from his position but Company G has not paid him salary, bonuses, and allowances in June 2015.

Mr. T sued Company G for the discharge decision against in another case which was conducted under first-instance procedure.

At the first instance court hearing, the petitioner’s representative changed and withdrew partial petition, in specific:

1. Request the respondent to pay the salary, bonuses, and allowances of VND 62,710,850 in June 2015 to Mr. T, this amount excluded the compulsory social insurance premium which the respondent paid on behalf of Mr. T but did not exclude personal income tax of VND 11,104,650. Since Mr. T will settle personal income tax with the tax authority, he requires the respondent to pay Mr. T total salary and tax of VND 73,815,500, excluding late payment charge.

2. Do not request annulment of documents issued by Mr. Lee Dong C - Director General of Company G.

3. Agree to reimburse the amount of compulsory social insurance premium which the respondent paid on his behalf from September 2014 to June 2015.

4. As for personal income tax, request the respondent to let him settle with the tax authority by himself.  As for the counterclaims of the respondent, the petitioner does not accept because:

The fact that the Director General directed the security guard to keep track of timesheets of Deputy General Director to calculate the amount of time during which Mr. T was absent from the Company as the basis for docking his pay is considered subjective and ultra vires. Because while all workers and employees coming in and out the Company has their timesheets recorded by their time cards, Mr. T’s timesheets, under the direction of the Director General, was recorded by the security guard, which does not ensure the accuracy and besides, the security guard is also influenced by the Director General. Moreover, as a Deputy General Director, Mr. T is also tasked to report on financial performance of the Company to President of the Board of Members two times a week and as a Secretary of Communist Party Cell, there are certain tasks related to politic, security, economics, management of foreigners working outside Vietnam, Communist party’s affairs, etc. requiring him to deal with outside the Company, so, Mr. T has appropriate reasons to go outside the Company with advance notice to the Director General. If Mr. T is regularly absent from the Company, the Director General is only authorized to report the Board of Members to require Mr. T to explain the reasons to the Board of Members for consideration.

As for the claim for bonuses, the respondent’s representative states that it refuses to pay the bonuses as the Board of Members has not given any evaluation. This statement is unfair and subjective. Because the Company has two Deputy General Directors, one is a foreigner, one is a Vietnamese - Mr. T. Earlier, the Company still paid bonuses to the Board of Directors continuously for a long time without consideration of the Board of Members. Through annual financial statements, the Board of Members has known the payment of bonuses without any objection as an implied recognition. During settlement of Mr. T’s lawsuit, the foreign Deputy General Director has still been paid bonuses as regular. But the respondent alleges that Board of Members has not considered Mr. T’s case as the basis for not paying bonuses. This accuse is unfair and cannot be accepted.

As for the claim for lawyer fee of VND 66,250,000, the petitioner rejects because the lawyer is hired by the Director General at his decision without the approval of the Board of Members.

As for the claim for court fee of VND 8,998,227, the petitioner rejects because the fee is a provisional fee under the First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015 of the People’s Court of district B which was quashed and has not become legally effective.

Representation of Mrs. Nguyen Thi L and Mr. Le Pham Vi N - legal representative of Company G in the counterclaim and during the legal proceedings:

* Regarding lawsuit claims of the petitioner, the respondent gives the following opinions:  As for claims for salary, bonuses and allowances in June 2015 and personal income tax of VND 73,815,500, the respondent rejects. The respondent only agrees to pay Mr. T the salary of VND 25,993,523, this salary is calculated according to the number of days Mr. T actually worked at the Company. The Company paid compulsory social insurance premium on behalf of Mr. T until June 2015 but has not withheld the personal income tax of Mr. T from September 2014 to June 2015. The respondent requires Mr. T to reimburse the compulsory social insurance premium.

* Regarding counterclaims of the respondent:

- The respondent’s account of VND 840,093,650 was deducted by the Sub-Department of Civil Judgment Enforcement of district B to pay the salary, bonuses and interests to Mr. T under the First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015 of the People’s Court of district B. The respondent only agrees to pay the salary of Mr. T from September 2014 to May 2015 ò VND 372,545,203 according to the actual number of days Mr. T worked at the Company, and refuses to pay the bonuses to Mr. T because the Board of Members has not evaluated if Mr. T completed his tasks during this period of time. Therefore, the respondent requires the petitioner to reimburse the overpaid amount of VND 467,548,447 (VND 840,093,650 - VND 372,545,203 = VND 467,548,447).

- Request the petitioner to reimburse the overpaid salary from March 1, 2014 to August 31, 2014. Reason: collecting salary arrears of 37.84 days which Mr. T did not work at the Company.

- Request the petitioner to pay the lawsuit fee of VND 66,250,000.

- Request the petitioner to pay the court fee of VND 8,998,227.

In total, request the petitioner to reimburse the respondent VND 630,813,969.

1.

1.1. Accept the lawsuit claim of the petitioner, Mr. Bui Quang T, against the respondent, Company G concerning his salary and bonuses.

1.2. Compel Company G to pay the unpaid salary in June 2015, bonuses and allowances to Mr. Bui Quang T, including: 

- The salary and allowances of VND 62,900,500 (Sixty two million nine hundred thousand five hundred dong).

- Bonuses: VND 10,915,000 (Ten million nine hundred fifteen thousand dong).

Total:  VND 73,815,500 (Seventy three eight hundred fifteen five hundred dong).

2. Mr. Bui Quang T is obliged to reimburse Company G the compulsory social insurance premium from September 2014 to May 2015 which Company G paid on his behalf of VND 21,735,000 (Twenty one million seven hundred thirty five thousand dong).

After offsetting obligations, Company G has to pay Mr. Bui Quang T the salary and allowances of VND 41,165,500 (Forty one million one hundred sixty five thousand five hundred dong) and bonuses: VND 10,915,000 (Ten million nine hundred fifteen thousand dong). Total is VND 52,080,500 (Fifty two million eighty thousand five hundred dong). Executed at the competent Sub-Department of Civil Judgment Enforcement.

If Company G defers paying above amounts, it must also pay the late payment charge corresponding to the late payment period. The late payment charge shall be determined according to the agreement of the parties but not exceeding the charge as prescribed in Clause 1 Article 468 of the Civil Code; if there is no such an agreement, Clause 2 Article 468 of the Civil Code 2015 shall apply.

3. Mr. Bui Quang T is obliged to settle his personal income tax from September 2014 to June 2015 with the Department of Taxation of Ho Chi Minh City.

4. Do not accept the entire counterclaim of the respondent, Company G:

- Request the petitioner to refund the overpaid amount from September 2014 to May 2015 of VND 467,548,447.

- Request the petitioner to reimburse the overpaid salary from March 1, 2014 to August 31, 2014 of VND 88,017,295.

- Request the petitioner to pay the lawsuit fee of VND 66,250,000.

- Request the petitioner to pay the court fee of VND 8,998,227. Total:  VND 630,813,969.

5. First instance labor court fee: Company G is obliged to pay the court fee of VND 17,657,889 (Seventeen million six hundred fifty seven thousand eight hundred eighty nine dong), which is deducted from the paid advance of VND 8,798,227 (Eight million seven hundred ninety eight thousand two hundred twenty seven dong) according to the receipt No. 0003721 dated April 6, 2015 and receipt No. 0010669 dated June 15, 2016 of Sub-Department of Civil Judgment Enforcement of district B. Company G must also pay VND 8,859,662 (Eight million eight hundred fifty nine thousand six hundred sixty two dong).

6. Refund Mr. T the paid advance payment of VND 200,000 (Two hundred thousand dong) according to receipt No. 003150 dated December 15, 2014 of the Sub-department of Civil Judgment Execution of district B.

7. 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.

8. Litigants may rightfully appeal this judgment within 15 days from the judgment announcement.

On March 31, 2017, Company G filed an appeal against the entire First Instance Judgment.

At the appellate court hearing:

Representation of authorized representative of the respondent - Mrs. Nguyen Thi Truc L and Mr. Le Pham Vi N:

According to the appeal dated March 31, 2017 against the entire First Instance Judgment, the respondent requires the petitioner to reimburse the overpaid amount equivalent to the days which the petitioner did not work at the Company from September 2014 to July 15, 2015, which are 186 days corresponding to VND 467,548,447; return the overpaid salary from March 1, 2014 to August 31, 2014, which are 27 days corresponding to VND 88,017,295; the lawyer fee of VND 66,250,000, and the court fee which was paid by the respondent of VND 8,998,227. Total:  VND 630,813,969. At today’s appellate court hearing, the respondent requests withdrawal of partial appeal regarding claim for lawyer fee of VND 66,250,000 and the court fee which was paid by the respondent of VND 8,998,227. Only claim for salary and bonuses of VND 55,565,742. Because the respondent’s account of VND 840,093,650 was deducted by the Sub-Department of Civil Judgment Enforcement of district B to pay the salary, bonuses and interests to Mr. T under the First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015 of the People’s Court of district B and the amount of VND 36,065,500 was deducted to pay the salary of June 2015 to Mr. T under the First Instance Labor Judgment No. 20/2017/LD-ST dated March 28, 2017 of the People’s Court of district B, Ho Chi Minh City. The respondent only agrees to pay the salary for those days Mr. T worked at the Company from September 2014 to May 2015 of VND 372,545,203, and refuses to pay bonuses to Mr. T during this period because the Board of Members has not evaluated if Mr. T completed the assigned tasks. Request the Trial Panel to accept the entire counterclaim of the respondent and correct the First Instance Judgment.

Representation of authorized representative of the petitioner, Mr. Nguyen Ngoc C:

The petitioner rejects the appeal of the respondent, and requests the Trial Panel to uphold the First Instance Judgment. However, there is a change of the amount as follows: Under the First Instance Labor Judgment No. 93/2015/LD-ST dated May 20, 2015, the People’s Court of district B compelled the respondent to pay the salary from September 2014 to May 2015 and the Tet holiday 2015’s bonus and the charge, totaling VND 840,093,650, this amount was totally paid by the petitioner. Under the First Instance Labor Judgment No. 20/2017/LD-ST dated March 28, 2017 of the People’s Court of district B, the petitioner only paid VND 36,065,500, the sum of VND 16,015,000 remains unpaid, so request the respondent to pay the remaining sum immediately.

As for compulsory social insurance premiums of 9 months which the Company paid on behalf of Mr. T from September 2014 to June 2015: 2,415,000 x 9 months = VND 21,735,000, Mr. T agrees to reimburse it to the Company.

As for the personal income tax from September 2014 to June 2015 which Mr. T has not paid, he requests to settle it with the Department of Taxation of Ho Chi Minh City by himself.

Opinions of the representative of the People’s Procuracy of Ho Chi Minh City about observance to the law during the case settlement in appellate stage:

In terms of court procedures: During the case settlement in appellate stage and at today’s court hearing, the Presiding Judge, Trial Panel, Court Reporter has complied with legal proceedings. Participants in legal proceedings have also complied with laws and regulations.

With reference to format: The appeal of Company G was filed within the required time limit.

In terms of the content: The representative of the People’s Procuracy of Ho Chi Minh City requests the Trial Panel of the Court of Appeal to:

- Appeal partial appeal of Company G concerning compelling the petitioner to reimburse the lawyer fee and court fee to the respondent.

- Reject the appeal of the petitioner concerning requesting Mr. Bui Quang T to reimburse the salary and bonuses of VND 555,565,742.

- Correct the First Instance Labor Judgment No. 20/2017/LD-ST dated March 28, 2017 of the People’s Court of district B, Ho Chi Minh City. Compel Company G to pay the unpaid salary, bonuses and allowances to Mr. Bui Quang T, after subtracting, which is VND 16,015,000. 

JUDGEMENT OF THE COURT

After consideration of the case files assessed and the adversarial process at the court hearing, the Trial Panel judges as follows:

[1] With reference to format: The appeal of Company G was filed within the required time limit, so it is accepted.

[2] In terms of court procedures: In the meeting to verify the submission and access to public evidence and reconciliation at first instance procedure: On August 30, 2016, the People’s Court of district B issued the notice No. 14/TB on the meeting to verify the submission and access to public evidence and reconciliation at first instance procedure and duly served it on the litigants on the same date. Under which, the meeting would take place at 14:00 on September 7, 2016, however there is no such a relevant meeting minutes. At today’s court hearing, the litigants confirm that the People’s Court of district B opened such meeting to verify the submission and access to public evidence and reconciliation at at 14:00 on September 7, 2016 and they give no further inquiry. Accordingly, the People’s Court of district B followed required procedures.

[3] With reference to content: The respondent appealed the entire First Instance Judgment under the appeal dated March 31, 2017, but the respondent requests withdrawal of partial appeal regarding claim for lawyer fee of VND 66,250,000 and the court fee which was paid by the respondent of VND 8,998,227. Considering that the respondent’s withdrawal of partial appeal is deemed voluntary and accordant with the law and social ethics, the Trial Panel accepts it and terminates such partial appeal of Company G regarding claim for lawyer fee and court fee from the petitioner.

Regarding the appeal of Sai Gon Star Company as to requesting Mr. Bui Quang T to reimburse his salary for those days he did not worked at the Company, equivalent to VND 555,565,742.

Sai Gon Star Company claims that according to the payroll timesheets, Mr. T had been absent regularly during the working hours at the Company without consent of the Director General, which constituted a breach of labor regulations, from September 2014 to July 15, 2015, which are 186 days equivalent to VND 467,548,477 and the overpaid salary from March 1, 2014 to August 31, 2014, which are 37 days equivalent to VND 88,017,295. So the Company requires Mr. T to reimburse the salary for those days he did not worked at the Company, equivalent to 555,565,742.

The petitioner’s authorized representative, Mr. Nguyen Ngoc C, claims that as a Deputy General Director, Mr. T is also tasked to report on financial performance of the Company to President of the Board of Members two times a week and as a Secretary of Communist Party Cell, there are certain tasks or meetings requiring him to deal with outside the Company, so, Mr. T has appropriate reasons to go outside the Company with advance notice.

 The fact that the Director General directed the security guard to keep track of timesheets of Deputy General Director to calculate the amount of time during which Mr. T was absent from the Company as the basis for docking his pay is considered subjective and ultra vires. Because while all workers and employees coming in and out the Company has their timesheets recorded by their time cards, Mr. T’s timesheets, under the direction of the Director General, was recorded by the security guard, which does not ensure the accuracy and besides, the security guard is also influenced by the Director General. So request the Trial Panel not to accept the request of Company G.

Considering that under Article 11.1, 11.3 of the joint venture agreement, amended in 2010 and Article 7.1 and Article 9 of the Charter, amended in 2010 “remuneration, benefits and other allowances paid to Deputy General Director, Mr. Bui Quang T, and other labor terms and conditions shall be decided by the Board of Members in accordance with Vietnamese law”. Therefore, only Board of Members has the right to decide the salary and labor-related matters of Deputy General Director Mr. Bui Quang T. If Mr. Bui Quang T commits the labor regulations of the Company, the Director General is only entitled to file a proposal to the Board of Members for decision. The fact that the Director General directed the security guard to keep track of timesheets of Deputy General Director to calculate the amount of time during which Mr. T was absent from the Company as the basis for docking his pay from September 2014 to July 15, 2015 and claimed the reimbursement of salary from March 1, 2014 to August 31, 2014 is considered subjective, ultra vires, not in accordance with Clause 2 Article 128 of the Labor Code 2012 in Viet Nam.  Accordingly, it is ungrounded fro Company G to required Mr. T to reimburse the salary for those days he did not work at the Company.

- Bonuses: The Company claims that as the Board of Members has not evaluated if Mr. T completed the assigned tasks, the Company could not pay bonuses to Mr. T.

Considering that, at the appellate court hearing, the respondent’s representative confirmed that since the establishment, the Board of Members has not held any meeting or made any record of evaluation if the Director General or Deputy General Director completed their assigned tasks, but the Director General or Deputy General Director, in fact, still received sufficient monthly, quarterly and Tet holiday’s bonuses. Thus, the silence of Board of Members could be deemed as its implied recognition that the Director General and Deputy General Director completed their assigned tasks. On the other hand, although the Company did not pay salary and bonuses to Mr. T, the foreign Deputy General Director was still paid the bonuses as normal. So, the Company's rejection to pay the bonuses to Mr. T is ungrounded to be accepted.

As for compulsory social insurance premiums of 9 months which the Company paid on behalf of Mr. T from September 2014 to June 2015: 2,415,000 x 9 months = VND 21,735,000, it is required to compel Mr. T to reimburse VND 21,735,000.

As for the personal income tax from September 2014 to June 2015 which Mr. T has not paid, he requests that he will settle it with the Department of Taxation of Ho Chi Minh City by himself. The Trial Panel accepts his request.

Under the First Instance Judgment No. 93/2015/LD-ST dated May 20, 2015, the People’s Court of district compelled Company G to pay the salary debt to Mr. T from September 2014 to May 2015, Tet holiday 2015’s bonus and charge, which is VND 840,083,650 in total. After the first instance court hearing, Mr. T was paid this amount in full. Due to the appeal of the respondent, the Court of Appeal adjudicated and quashed the entire Judgment as the First Instance Judgment has not Mr. T’s obligation to pay personal income tax and social insurance premium. After that, Mr. T continued working until June 2015.

Considering that the Court of First Instance made an inadequate decision when only accepting lawsuit petition of Mr. Bui Quang T as to the salary, bonuses and allowances in June 2015 of VND 73,815,500 and disregarding the salary and bonuses from September 2014 to May 2015. Because Mr. T received the amount in full under the Judgment No. 93/2015/LD-ST dated May 20, 2015 of the People’s Court of district B but this Judgment has not become legally effective. Due to the counterclaim of the respondent, the consideration and offsetting obligations as to the salary, bonuses and other allowances of Mr. T must be done from September 2014 to June 2015 in accordance with laws and regulations. Hence, it is necessary for the Court of Appeal to correct the First Instance Judgment No. 20/2017/LD-ST dated March 28, 2017 of the People’s Court of district B, in specific:

- The salary and bonuses from September 2014 to June 2015 under the First Instance Judgment No. 93/2015/LD-ST dated May 20, 2015 is VND 840,093,650 + salary in June 2015 is VND 73,815,500 = VND 913,909,150.

- The salary and bonuses that Mr. T received: VND 876,159,150

Therefore, the Company also has to pay: VND 913,909,150 - VND 876,159,150 = VND 37,750,000.

Deducting the sum of compulsory social insurance premium of 9 months that the Company paid on behalf of Mr. T from September 2014 to May 2015, so compel Mr. T to reimburse the respondent the amount of VND 2,415,000 x 9 months = VND 21,735,000.

Therefore, the Company also has to pay: VND 37,750,000 - VND 21,735,000 = VND 16,015,000.

With reference to court fees: The petitioner paid the advance of court fee of VND 200,000 (Two hundred thousand dong) according to the receipt No. 0003150 dated December 15, 2014 and VND 2,805,100 (Two million eight hundred five thousand one hundred dong) according to the receipt No. 0005435 dated February 29, 2016 of Sub-Department of Civil Judgment Enforcement of district B but the Court of First Instance only refunded the petitioner the paid advance of VND 200,000 and disregarded the paid advance of VND 2,805,100. This was an error. And it is necessary to reconsider the salary, bonuses and charge for Mr. T from September 2014 to June 2015, the first instance court fee must be corrected.

From the foregoing consideration, the People’s Court of district B does not accept the counterclaim of the respondent in accordance with laws and regulations.

Considering that the appeal of Company G in ungrounded to accept, the Trial Panel concurs with the representative of the People’s Procuracy of Ho Chi Minh City not to accept the appeal of the respondent and correct the First Instance Labor Judgment No. 20/2017/LD-ST dated March 28, 2017 of the People’s Court of district B, Ho Chi Minh City. 

With reference to court fees: The respondent, Company G, has to pay the court fee for the salary and bonuses payable to Mr. T.

Regarding appellate court fee: Company G is not obliged to pay the appellate court fee. Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

- Pursuant to Clause 3 Article 298 and Clause 2 Article 308 of the Civil Procedure Code 2015 in Viet Nam

- Pursuant to Clause 2 Article 128 of the Labor Code 2012;

- Pursuant to Article 24 of Decree No. 05/2015/ND-CP in Viet Nam dated January 12, 2015 on guidelines for the Labor Code;

- Pursuant to Ordinance on Court Fees and Charges 2009 in Viet Nam;

- Pursuant to Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 on court fees and charges, exemption, reduction, collection, transfer, management and use thereof;

- Pursuant to the Law on Civil Judgment Enforcement 2008 (amended in 2014) in Viet Nam.

* With reference to format: The appeal of Company G was filed within the required time limit, so it is accepted.

* With reference to content:

- Appeal partial appeal of Company G concerning compelling the petitioner to reimburse the lawyer fee and court fee to the respondent.

- Reject the appeal of the petitioner concerning requesting Mr. Bui Quang T to reimburse the salary and bonuses of VND 555,565,742.

- Correct the First Instance Labor Judgment No. 20/2017/LD-ST dated March 28, 2017 of the People’s Court of district B, Ho Chi Minh City.

Judges:

1. Appeal partial appeal of Company G concerning compelling the petitioner to reimburse the lawyer fee and court fee to the respondent.

2. Reject the appeal of the petitioner concerning requesting Mr. Bui Quang T to reimburse the salary and bonuses of VND 555,565,742.

3. Compel Company G to pay the unpaid salary, bonuses and allowances to Mr. Bui Quang T, after subtracting, which is VND 16,015,000. 

4. Mr. Bui Quang T is obliged to settle his personal income tax from September 2014 to June 2015 with the Department of Taxation of Ho Chi Minh City.

Executed at the competent Sub-Department of Civil Judgment Enforcement.

5. First instance labor court fee: Company G is obliged to pay the court fee of VND 22,278,183 (Twenty two million two hundred seventy eight thousand one hundred eighty three dong), which is deducted from the paid advance of VND 8,798,227 (Eight million seven hundred ninety eight thousand two hundred twenty seven dong) according to the receipt No. 0003721 dated April 6, 2015 and receipt No. 0010669 dated June 15, 2016 of Sub-Department of Civil Judgment Enforcement of district B. Company G must also pay VND 13,479,956 (Thirteen million four hundred seventy nine thousand nine hundred fifty six dong).

6. Refund Mr. T the paid advance of court fee of VND 200,000 (Two hundred thousand dong) according to the receipt No. 0003150 dated December 15, 2014 and VND 2,805,100 (Two million eight hundred five thousand one hundred dong) according to the receipt No. 0005435 dated February 29, 2016 of Sub-Department of Civil Judgment Enforcement of district B.

7. Appellate labor court fee: Company G is not obliged to pay the appellate court fee. Refund the respondent the paid advance of appellate court fee of VND 300,000

(Three hundred thousand dong) according to the receipt No. 0012422 dated April 4, 2017 of Sub-Department of Civil Judgment Enforcement of district B.

8. 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.

9. The Appellate Judgment shall take legal effect from the date of pronouncement.