Answer:
Decree 44/2003/NĐ-CP, effective as of 11/6/2003 and ceasing to be effective as of 01/7/2013, prescribes that Employer may unilaterally terminate a LC where the Employee regularly fails to fulfil the job as agreed in the LC if the Employee has not satisfied the labour rate or assigned tasks due to subjective reasons and have been recorded or reprimanded in writing at least two times in one month but cannot improve his or her performance. However, the Labour Code 2019, effective as of 01/01/2021, and other relevant guiding documents does not retain the regulation mentioned above. Accordingly, the grounds to conclude that the Employee has regularly failed to fulfil his or her tasks will solely be based on the criteria for evaluating the task completion level prescribed in the regulation which the Employer has issued after consulting the organisation representing employees at the grassroots level[1]. Therefore, besides setting the criteria for evaluating the task completion level, the Employer must also define the concept of “regularly” by specifying a particular number of times within a certain time frame where the Employee might fail to fulfil his or her assigned tasks. However, in order to ensure its appropriateness and legality in the future, the concept of “regularly” in the evaluation criteria set by the Employer should be based on the nature of each job. For the jobs which require spending a lot of time working on, the concept of “regularly” will be defined based on the longer interval between the times when the Employee fails to fulfil his or her tasks. But for the jobs which require spending less time, the concept of “regularly” “should” be interpreted as “at least 2 times per month” as prescribed in Decree 44/2003/NĐ-CP. In addition, to record the number of times when the Employee has failed to fulfil his or her tasks for the purpose of proving the regularity, the Employer can send notices by email or in writing to the Employee regarding his or her failure to fulfil the tasks.
The Labour Code does not contain any regulation that requires the Employer to notify the Employee in advance if the Employer has sufficient grounds to prove that the Employee has regularly failed to fulfil his or her job agreed in the Labour Code and the valid evaluation criteria set by the enterprise. However, to thoroughly understand the situation in an objective way before deciding to terminate LC unilaterally, the Employer should hold a meeting to evaluate the Employee’s task completion level with the attendance of the immediate superiors or colleagues of the concerned Employee, and the representative of the organisation representing employees at the grassroots level (if possible). If it is necessary to give the Employee a period of time to improve his or her performance, the Employer can temporarily suspend the procedure for unilaterally terminating the LC until the next performance evaluation.
[1]Article 36.1 (a) of the Labour Code
