The Supreme People's Procuracy of Vietnam's guidance on the control of resolution of individual labor dispute cases in Vietnam

Regarding this matter, LawNet would like to answer as follows:

On November 8, 2022, the Supreme People's Procuracy of Vietnam issued Guidance 33/HD-VKSTC, providing guidance on certain fundamental aspects of controlling the resolution of individual labor dispute cases.

The specific content of the guidance is as follows:

1. Regarding the conditions for initiating individual labor dispute cases in Vietnam

- The conditions for initiating individual labor dispute cases are stipulated in Clause 1 of Article 188, Clause 2 of Article 219 of the Labor Code 2019, and Article 32 of the Civil Procedure Code 2015. When supervising this matter, prosecutors and officials need to accurately and fully determine the labor dispute relationship, thereby determining whether the dispute falls under the mandatory conciliation procedure before filing a lawsuit or whether it can be directly filed with the Court without undergoing the conciliation procedure.

+ For individual labor disputes specified in points a, b, c, d, e of Clause 1 of Article 188 of the Labor Code 2019, the disputing parties have the right to file a lawsuit and request the Court to resolve the dispute without being required to go through the conciliation procedure.

+ For individual labor disputes that must be resolved through the conciliation procedure conducted by a labor conciliator, as specified in Clauses 6 and 7 of Article 188 of the Labor Code 2019, the Court can only accept and resolve the case in the following circumstances:

(i) When the labor conciliator fails to conduct conciliation within 5 working days from the date of receiving the request from the requesting party or from the labor specialized agency under the People's Committee. In this case, prosecutors and officials need to study the documents and evidence to determine whether the labor conciliator received the request to resolve the dispute but failed to do so within the prescribed time limit.

(ii) When the disputing parties have undergone conciliation but one of the parties fails to comply with the agreements recorded in the conciliation minutes. In this case, prosecutors and officials need to pay attention to the participants in the conciliation process, the content of the conciliation, whether the minutes were heard and jointly signed by the participating parties, whether the agreements comply with the provisions of the law or contravene them, and the documents and evidence showing that one of the disputing parties failed to comply with the agreements in the conciliation minutes.

(iii) When the disputing parties have undergone conciliation but the conciliation is not successful.

In addition to the above-mentioned cases, if the Court accepts and resolves a case when the employer and the employee have not gone through the conciliation procedure conducted by a labor conciliator, it is considered a violation of the conditions for initiating a lawsuit. Therefore, prosecutors must request the Court suspend the case according to the provisions of point g, Article 217 of the Code of Civil Procedure 2015. If the Court does not accept the Prosecutor's viewpoint and proceeds with the trial, the Prosecutor must promptly report to the Chief Prosecutor of the Supreme People's Procuracy to issue a decision on appellate protest or report to the competent Chief Prosecutor of the Prosecutor's Office to issue a decision on appellate protest; the Director of the Court of Appeal for the judgment or decision of the Court.

- Note that, according to the provisions of Article 189 of the Labor Code 2019, the Labor Arbitration Council has jurisdiction to resolve individual labor disputes. When requesting the Labor Arbitration Council to resolve the dispute, parties are not allowed to simultaneously request the Court to resolve it, except in the following cases:

+ When the Labor Arbitration Council fails to be established within 7 working days from the date of receiving the request to resolve the dispute, as stipulated in Clause 1 of Article 189 of the Labor Code 2019.

+ When the Labor Arbitration Council fails to issue a decision to resolve the dispute within 30 days from the date of its establishment.

+ When the Labor Arbitration Council has issued a decision to resolve the dispute, but one of the parties fails to implement the decision.

2. Regarding the time limit for initiating individual labor dispute lawsuits in Vietnam

- The time limit for initiating individual labor dispute lawsuits is stipulated in Clause 3 and Clause 4 of Article 190 of the Labor Code in 2019. Accordingly, the time limit for requesting the Court to resolve an individual labor dispute is one year from the date the disputing party discovers that their legitimate rights and interests have been violated. If the party entitled to file a lawsuit can prove that the delay in filing the lawsuit is due to force majeure events, objective obstacles, or other reasons as prescribed by the law, which prevent them from initiating the lawsuit within the statutory time limit, then the time period affected by such force majeure events, objective obstacles, or reasons shall not be counted against the time limit for filing the lawsuit.

When examining the time limit for filing a lawsuit, the Prosecutor, officials, and public servants should pay attention to determining the starting point of the time limit for requesting the Court to resolve the labor dispute, which begins when the disputing party discovers that their legitimate rights and interests have been violated. For example, if an employee receives a dismissal decision after the effective date of the dismissal decision, the time limit for requesting the Court to resolve the dispute will be counted from the date the employee receives that dismissal decision.

For cases in which the parties have requested labor conciliators to conduct conciliation before requesting the Court to resolve the labor dispute (including cases where labor dispute resolution through the conciliation process is not mandatory, but the disputing parties agree to choose dispute resolution through the conciliation process) or when the disputing parties request the Arbitration Council to resolve the labor dispute but fall within the cases specified in Clause 4 and Clause 5 of Article 189 of the Labor Code in 2019, the time limit for filing a lawsuit is still counted from the date the parties discover that their legitimate rights and interests have been violated. It is not counted from the date of an unsuccessful conciliation record, the expiration date of conciliation in which the labor conciliator does not conduct conciliation, or from the date the parties do not comply with the agreement in the conciliation record or the decision to resolve the dispute by the Labor Arbitration Council (Clause 3 of Article 190 of the Labor Code in 2019).

3. Regarding the determination of labor dispute relationships in Vietnam

- Due to the diverse and complex nature of labor relations, accurately determining labor dispute relationships in many cases is difficult and problematic. In a labor case, there may be one or multiple intertwined dispute relationships that need to be resolved, and not every plaintiff accurately identifies the disputed issue when filing a lawsuit. Accurately and fully determining the labor dispute relationships is of significant importance in the supervision of the jurisdiction to resolve the case by the Court, the scope of jurisdiction, the conditions for filing a lawsuit, the documents and evidence that need to be verified and collected, the procedural capacity of the parties, the applicable legal basis for resolving the case, and the obligation to pay provisional litigation costs and court fees. However, in reality, there are cases where the Court misidentifies the dispute relationships, leading to the application of incorrect legal provisions to resolve the case, resulting in the annulment or amendment of the judgment by the higher court.

- When examining the determination of labor dispute relationships by the Court, the Prosecutor, officials, and public servants should take note of the following:

+ Thoroughly study the lawsuit and the accompanying documents and evidence regarding the events or legal acts that the employee (or the employer) believes have infringed upon their legitimate rights and interests, and for which they initiate the lawsuit. In addition to the plaintiff's requirements, if the case involves a counterclaim by the defendant, or the independent request of a party with rights, interests, or obligations related to the dispute, the Prosecutor, officials, and public servants must conduct comprehensive research and examination to accurately determine all the dispute relationships that need to be resolved in the same case.

+ Compare the requirements of the parties with the provisions of civil procedural law, labor law, and relevant legal regulations governing labor relations with disputes to accurately determine the parties' demands. The scope of the parties' requirements should not be expanded or restricted beyond the scope of their demands.

4. Regarding the proof and evidence for resolving individual labor disputes in Vietnam

- Regarding the obligation of proof: the employer must prove that they have fulfilled their obligations regarding employment security, working conditions, and the regimes and benefits enjoyed by employees as prescribed by law or agreement. They must also prove the legality of unilaterally terminating the labor contract and applying disciplinary measures to employees (Clause b, Article 91 of the Civil Procedure Code 2015). However, in cases where the employer does not acknowledge the unilateral termination of the labor contract and claims that the employee voluntarily resigned or was dismissed for voluntarily resigning, the employee also has the responsibility to prove that they were unilaterally terminated or that they complied with the regulations by going to the workplace.

- Regarding the responsibility to provide evidence: If the employee initiates a lawsuit in an individual labor dispute and fails to provide or submit documents and evidence due to the fact that these documents and evidence are managed and held by the employer, the employer is responsible for providing and submitting such documents and evidence to the Court. If the employer fails to provide them or if the Court has not verified and collected them, the Prosecutor's Office needs to issue a document requesting the Court to verify and collect the relevant documents and evidence as a basis for resolving the case. Regarding documents provided by only one party and only confirmed by individuals related to that party, without confirmation from the competent authority or other objective witnesses, the supervisory process needs to comprehensively and objectively examine and evaluate the documents, evidence, and opinions to clarify any inconsistencies and determine the legality and evidentiary value of the documents provided by the party.

Note that the Prosecutor, officials must evaluate the objectivity and legality of the activities of collecting documents and evidence by the Court in accordance with the provisions of the Civil Procedure Code 2015 and Resolution 04/2012/NQ-HDTP. Evidence can be collected from various sources but can only be considered as evidence for resolving the case if it meets the requirements stipulated in Article 95 of the Civil Procedure Code 2015. For example:

+ Documents that do not have the status of the original or certified copy, authenticated legally, or provided by an authorized agency or organization cannot be considered as evidence.

+ Electronic data messages exchanged via electronic means such as email; messages through applications like Zalo, Viber, WhatsApp, etc., are considered evidence based on the reliability of the method of initiating, storing, or transmitting the data message; the methods of ensuring and maintaining the integrity of the data message; the identification of the initiator, and other relevant factors in the case (Clause 3, Article 95 of the Civil Procedure Code 2015; Article 14 of the Law on Electronic Transactions 2005).

5. Regarding the advance payment of court fees and labor dispute court fees in individual labor disputes in Vietnam

To supervise the collection and exemption of court fees and labor dispute court fees by the Court, Prosecutors, and officials, it is necessary to correctly determine and provide complete information regarding the labor dispute in the case. In principle, the plaintiff requesting to initiate a lawsuit, the defendant requesting a counterclaim, and the parties with related rights and obligations independently requesting in the labor dispute case must submit an advance payment for court fees. In cases where the Court does not accept the request of the party, they must bear the court fees for the request that was not accepted.

However, according to the provisions of point a, clause 1, Article 12 of Resolution 326/2016/UBTVQH14 on the collection, exemption, reduction, collection, management, and use of court fees and fees of the Court, in some cases where the employee initiates a lawsuit claiming for wage, job loss allowance, severance allowance, social insurance, compensation for occupational accidents, occupational diseases, or resolving compensation issues due to illegal dismissal or termination of labor contracts, they are exempt from paying the advance payment for court fees. If the above-mentioned request for initiating a lawsuit by the employee is not accepted by the Court, they are also not required to pay court fees.

6. Regarding the application of laws in resolving individual labor disputes in Vietnam

Clause 1, Article 156 of the Law on Promulgation of Legislative Documents in 2015 states that "Legislative documents are applicable to acts occurring at the time when those documents are in effect." Therefore, Prosecutors and officials need to thoroughly study the documents and evidence regarding the time of signing the labor contract and the occurrence of disputes in the employment relationship to accurately determine the applicable effective legal normative documents for resolving the dispute.

Furthermore, the guidelines also provide directions for prosecuting typical cases of labor disputes, such as:

- Disputes regarding disciplinary actions in the form of termination of employment;

- Disputes regarding decisions on disciplinary actions leading to termination of employment;

- Unilateral termination of the labor contract by the employer;

- Unilateral termination of the labor contract by the employee;

- Disputes regarding compensation for damages upon termination of the labor contract;

- Disputes regarding severance allowances;

- Disputes regarding the implementation of the labor contract.

More details can be found in Guidance 33/HD-VKSTC. Download

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