Do labor disputes have to be settled through mediation in Vietnam before filing a lawsuit in court?

1. Do labor disputes have to be settled through mediation in Vietnam before filing a lawsuit in court?

Pursuant to Article 188 of the Labor Code 2019 has the following provisions:

1. Individual labor disputes shall be settled through mediation by labor mediators before being brought to the Labor Arbitration Council or the Court, except for the following labor disputes for which mediation is not mandatory:

a) Disputes over dismissal for disciplinary reasons; unilateral termination of employment contracts;

b) Disputes over damages and allowances upon termination of employment contracts;

c) Disputes between a domestic worker and his/her employer;

d) Disputes over social insurance in accordance with social insurance laws; disputes over health insurance in accordance with health insurance laws ; disputes over unemployment insurance in accordance with employment laws; disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and health laws;

dd) Disputes over damages between an employee and organization that dispatches the employee to work overseas under a contract;

e) Disputes between the outsourced worker and the client enterprise.

2. The Labor Arbitration Council shall complete the mediation process within 05 working days from the receipt of the request from the disputing parties or the authority mentioned in Clause 3 Article 181 of this Labor Code.

3. Both disputing parties must be present at the mediation meeting. The disputing parties may authorize another person to attend the mediation meeting.

4. The labor mediator shall instruct and assist the parties to negotiate with each other.

In case the two parties reach an agreement, the labor mediator shall prepare a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator.

In case the two parties do not reach an agreement, the labor mediator shall recommend a mediation option for the disputing parties to consider. In case the parties agree with the recommended mediation option, the labor mediator shall prepare a written record of successful mediation which bears the signatures of the disputing parties and the labor mediator.

Where the two parties do not agree with the recommended mediation option or where one of the disputing parties is absent for the second time without a valid reason after having been legitimately summoned, the labor mediator shall prepare a record of unsuccessful mediation which bears the signatures of the present disputing parties and the labor mediator.

5. Copies of the record of successful mediation or unsuccessful mediation shall be sent to the disputing parties within 01 working day from the date on which it is prepared.

6. In case a disputing party fails to adhere to the agreements specified in the record of successful mediation, the other party may request a Labor Arbitration Council or the Court to settle the case.

7. In case mediation is not mandatory as prescribed in Clause 1 of this Article, the labor mediator fails to initiate the mediation by the deadline specified in Clause 2 of this Article, or the mediation is unsuccessful as prescribed in Clause 4 of this Article, the disputing parties may:

a) request the Labor Arbitration Council to settle the dispute in accordance with Article 189 of this Labor Code; or

b) Request the Court to settle the dispute.

Thus, in some cases according to the above provisions, you will not have to go through the labor mediation procedure in Vietnam at labor mediators but can initiate a lawsuit in court.

2. What are time limits for requesting settlement of individual labor disputes in Vietnam? 

Pursuant to Article 190 of the 2019 Labor Code, time limits for requesting settlement of individual labor disputes are as follows:

1. The time limit to request a labor mediator to settle an individual labor dispute is 06 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

2. The time limit to request a Labor Arbitration Council to settle an individual labor dispute is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests.

3. The time limit to bring an individual labor dispute to the Court is 01 year from the day on which a party discovers the act of infringement of their lawful rights and interests.

4. In case the requester is able to prove that the aforementioned time limits cannot be complied with due to a force majeure event or unfortunate event, the duration of such event shall not be included in the time limit for requesting settlement of individual labor dispute.

According to this Article, time limits for requesting settlement of individual labor disputes depend on where the disputing party chooses to settle the labor dispute in Vietnam.

Best Regards!