Guidelines for controlling conditions for initiating lawsuits for individual labor disputes in Vietnam

Guidelines for controlling conditions for initiating lawsuits for individual labor disputes in Vietnam (Internet image)

On November 8, 2022, the Supreme People's Procuracy issued Instruction 33/HD-VKSTC on the basic contents of supervising the settlement of individual labor dispute cases.

Accordingly, the guidance on supervision of conditions for initiating lawsuits and the statute of limitations for initiating lawsuits for individual labor disputes are as follows:

Guidelines for controlling conditions for initiating lawsuits for individual labor disputes in Vietnam

- Conditions for initiating an individual labor dispute case are specified in Clause 1, Article 188, and Clause 2, Article 219 of the Labor Code 2019, and Article 32 of the Civil Procedure Code 2015. When inspecting this content, procurators and civil servants need to properly and fully determine the labor dispute relationship, thereby considering the dispute in cases where it is mandatory to go through conciliation procedures before initiating lawsuits or in cases where lawsuits can be instituted at Court without going through conciliation procedures.

+ For individual labor disputes specified at Points a, b, c, d, dd, and e, Clause 1, Article 188 of the Labor Code 2019, the disputing parties have the right to initiate a lawsuit to request the Court to settle without having to go through conciliation procedures.

+ For individual labor disputes that must be resolved through the mediation procedure of the labor conciliator, according to the provisions of Clauses 6 and 7, Article 188 of the Labor Code 2019, the Courts may only accept and settle cases in the following cases:

(i) Expiry of 05 working days from the date the labor conciliator receives the request from the party requesting the resolution of the dispute or from the specialized labor agency under the People's Committee, but the labor conciliator does not conduct the conciliation.

In this case, the procurator and civil servant studied documents and evidence to determine when the labor mediator received the request for dispute settlement but failed to settle it on time.

(ii) The disputing parties have successfully conciliated, but one of the parties has not implemented the agreements recorded in the minutes of successful conciliation.

In this case, procurators and civil servants should pay attention to the participants in the mediation; content of the successful mediation; whether the minutes are approved for the parties to hear and jointly sign the minutes; the content of the agreement is in accordance with the provisions of law or contrary to the provisions of law; documents and evidence showing that one of the disputing parties did not comply with the agreement in the minutes of conciliation.

(iii) The disputing parties have conciliated, but the conciliation is unsuccessful.

In addition to the above cases, if the Court accepts and settles the case when the employer and the employee have not approved the conciliation procedure of the labor conciliator, it is a violation of the lawsuit conditions.

Therefore, the procurator must request that the court suspend the settlement of the case according to the provisions of Point g, Clause 1, Article 217 of the Civil Procedure Code 2015.

In case the Court does not accept the procurator's point of view but still brings the case to trial, the procurator should promptly report to the Chief Procurator of the People's Procuracy at his/her level to issue the decision on appeal or report to the Procurator General of a competent procuracy to issue an appellate protest; cassation review of court judgments and decisions.

- According to the provisions of Article 189 of the Labor Code 2019, the Labor Arbitration Council has the authority to settle individual labor disputes. When requesting the Labor Arbitration Council to settle a dispute, the parties may not concurrently request the Court to settle the dispute, except for some of the following cases:

+ The time limit of 07 working days from the date of receipt of the request for dispute settlement according to the provisions of Clause 1 of Article 189 of the Labor Code 2019 has not been established, but the Labor Arbitration Board has not been established.

+ After 30 days from the date of establishment of the Labor Arbitration Board, the Labor Arbitration Board has not issued a decision to settle the dispute.

+ There has been a decision to settle the dispute by the Labor Arbitration Board, but one of the parties has not implemented the decision.

Guidance on monitoring the statute of limitations for initiating an individual labor dispute case in Vietnam

- The statute of limitations for initiating an individual labor dispute case is specified in Clauses 3 and 4, Article 190 of the Labor Code 2019.

The statute of limitations for requesting the Court to settle an individual labor dispute is 01 year from the date of discovering the act in which the disputing party believes that his/her legitimate rights and interests are infringed.

If the subject has the right to initiate a lawsuit, it can prove that the statute of limitations has expired due to force majeure events, objective obstacles, or other reasons according to the provisions of law, making the plaintiff unable to initiate the lawsuit within the prescribed time limit. The time of force majeure events, objective obstacles, or such reasons shall not be included in the statute of limitations for initiating lawsuits.

When inspecting the statute of limitations for filing a lawsuit, procurators and civil servants should note that determining the time limit for calculating the statute of limitations for initiating a lawsuit to request the Court to settle a dispute begins when the disputing party discovers that its lawful rights and interests have been violated. For example: If an employee receives a dismissal decision after the effective date of the dismissal decision, the statute of limitations for requesting a court to settle the dispute is counted from the date the employee receives such a dismissal decision.

- For the case where, before asking the Court to settle the labor dispute, the parties have requested the labor mediator to conduct mediation (including the case where the labor dispute is not required to go through the conciliation procedure but the disputing parties agree to choose to settle the dispute according to the conciliation procedure) or the disputing parties request the arbitration council to settle the labor dispute, but in the case specified in Clauses 4 and 5, Article 189 of the Labor Code 2019, the statute of limitations for initiating a lawsuit is as follows:

+ It is still counted from the date of discovering the act that each disputing party believes that its lawful rights and interests have been violated;

+ Not counting from the date of receiving the minutes of the unsuccessful conciliation of the labor conciliator,
the expiry date of the mediation, but the labor conciliator fails to conduct the conciliation or does not count from the date the parties fail to implement the agreement in the record of successful conciliation, the dispute settlement decision of the Labor Arbitration Board.

(Clause 3, Article 190 of the Labor Code 2019).

Diem My

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