Answer:
The Labour Code does not have a clear and sequential regulation on the specific legal process for the Employer to unilaterally terminate the LC with the Employee because the Employee often does not complete the assigned work. However, based on the provisions of the labour laws in general and the regulations on unilaterally terminating the LC with the Employee due to frequent failure to complete the work in particular, the Employer should complete all of the following steps:
- Step 1: Hold a meeting with the Employee to assess the Employee’s range of work completion (based on job descriptions and indicators measuring the Employee’s work results)
There is no clear regulation in the Labour Code that requires the Employer to hold a meeting to assess the Employee’s range of work completed before unilaterally terminating the LC. However, to understand the matter thoroughly before reaching the final decision, unilaterally terminate the LC with the Employee, the Employer needs at least one meeting to evaluate the Employee’s level of work completion. Accordingly, the meeting should have the participation of the organisation representing employees at the grassroots level, the direct superior manager and/or colleagues in the same group as the Employee, and the participation of the legal representative of the enterprise (if possible) to make an objective assessment of the case. The meeting should be fully recorded in writing for all participants to sign to confirm the content of the meeting.
Normally, in the majority of cases, the Employer will give comments from the managers of the business about the indicators measuring the Employee’s performance and thereby come up with a plan for the Employee to improve outputs of his or her work in a reasonable period of time. During that time period, the Employer will cease temporarily the next steps as below to unilaterally terminate the LC with the Employee.
- Step 2: Inform the Employee in advance that the Employer will unilaterally terminate the LC with the Employee because the Employee often fails to complete the assigned work.
If after the meeting to evaluate the work completion level of the Employee or if after the second meeting with the Employee to evaluate the plan to improve the assigned work result but the Employee still fails to meet the requirements, the Employer will have the right to unilaterally terminate the LC with the Employee and notify the Employee in advance of unilateral termination of the LC as follows[1]
– At least 30 calendar days for a LC with a term from 12 months to 36 months;
– At least 45 calendar days for a indefinite-term LC; and
– At least 03 working days for a LC with a term of fewer than 12 months.
- Step 3: The Employer issues a decision to unilaterally terminate the LC with the Employee
The Labour Code’s regulations do not provide a form of unilateral decision to terminate the LC for reference. However, the content of the decision should also fully show the following information: date of termination of the LC, the reason for termination, obligations to pay the related interests of the parties. In addition, the legal representative of the enterprise will be the person on behalf of the business to sign the decision to avoid cases of Employee complaints related to the enterprise’s authority to sign decisions.
- Step 4: Fulfill the obligations of the Employer upon the termination of the LC
Within 14 working days from the date of termination of the LC, the Employer is responsible for paying all payments related to the Employee’s benefits including unpaid salary; unpaid leave and other payments (if any); severance allowance (if the conditions required by law are met); and other goodwill grants (if any)[1].
In addition, the Employer also needs to request the Employee to return the original of his or her social insurance book for the human resources department to carry out the procedures for confirming, closing, and returning the social insurance book, and other documents to the Employee[1].
By and large, the time period for implementing the process of unilateral termination of a LC above will take about 2 to 3 months, depending on the time it takes to notify the Employee in advance of the Employer’s unilateral termination of the LC.
Among the steps of procedures to be taken when the Employer unilaterally terminates the LC as described above, Step 1 (holding a meeting with the Employee to assess the Employee’s level of work completion) can be considered as the most important and the riskiest and affect all the remaining procedural steps. Although not a mandatory step under the provisions of the labour law, this is considered a “stepping stone” to help the Employer evaluate evidence that the Employee often fails to complete the work under the LC, thereby, as the legal basis for the Employer’s decision to unilaterally terminate the LC, avoid the Employee’s complaints and complaints at the labour management State agencies or sue to the competent Courts later. The confirmation of whether the Employee often fails to complete the work or not during the assessment meeting and recorded in the minutes of the meeting is most likely to be questioned by the labour management State agency or the competent Court about the nature of the meeting, the reasonableness of the meeting timeline, the objectivity of the meeting participants, the subjectivity of the Employer’s decision, the assessment regulations were discussed and considered at the meeting which is in accordance with the law and is reasonable or not, the evidence proving that the Employee often fails to complete the work according to the evaluation criteria is clear and appropriate …
In addition, Step 1 is also an opportunity for the Employer to “measure” the Employee’s reaction when the Employee realises that he or she is likely to be unilaterally terminated by the Employer. Through that, the Employer will have better preparation steps and take more rigorous consideration before making a unilateral decision to terminate the LC with the Employee.
[1]Article 36.2 of the Labour Code
[2]Article 48.2 of the Labour Code.
[3]Article 48.3 of the Labour Code
