Answer:
- In a dispute over unlawful dismissal, who is the burden of proof placed upon?
Dismissal is one of the forms of discipline prescribed in the Labour Code[1]. In a dispute over the unlawful implementation of disciplinary action, the burden of proof will be placed on the Employer[2]. Therefore, the same principle applies to a dispute over unlawful dismissal, the Employer, not the Employee, will bear the burden of proof no matter their respective position in the dispute. The reason for this regulation is that the legislature considers the Employee be a vulnerable party in the employment relationship, with unavailable access to relevant information and evidence in the enterprise’s possession, thus the laws should be more protective of him or her by shifting the burden of proof to the Employer.
If the Employee requests the Employer through a competent Court to provide information and documents related to the case that the Employer is possessing, does the Employer have the right to refuse to submit such relevant information and documents for the reason of protecting its business secrets? Will they be punished for refusing to comply with the request of evidence from the Court? If so, what is the punishment?
Under Article 106.3 of the Civil Proceedings Code, any institution, organisation, and individual who manages or stores documents and evidence that are relevant to the case are obliged to produce all of them at the Court’s request within 15 days, after the day they receive from the Court’s request. If they fail to sufficiently produce requested documents and evidence within the time frame, they must explain in writing the reason why they do so. If they fail to follow the Court’s request without a justifiable reason, depending on the nature and seriousness of the breach, they will be subject to administrative penalty or be prosecuted for criminal liability[3]. Please note that being subject to the administrative penalty or being prosecuted for the criminal liability does not exempt oneself from submitting requested documents and evidence to the Court.
However, the applicable laws do not have any detailed guideline on the definition of “justifiable reason” for which one is unable to produce requested documents and evidence. For that reason, there has yet been a clear legal basis to conclude as to whether protection of business data is regarded as a “justifiable reason” to decline the compliance pursuant o the Court’s request. On the other hand, any agency conducting proceedings, person conducting proceedings are also responsible for protecting occupational and the business secret of litigants, including keeping relevant documents and evidence in confidence at the reasonable request of litigants[4]. It can understand that the data protection has already been recognised and ensured in Courts. Thus, protection of business data may not be considered by the Court as a justifiable reason to reject the submission of documents and evidence at the Court’s request under Article 106.3 of the Civil Proceeding Code. In such a case, the refusing party may face legal liability for impeding judicial activity.
In particular, a presiding Judge has the right to impose a monetary fine up to VND2,000,000, chief justice of a district people’s Court and chief justice of the provincial Specialised Court up to VND15,000,000, and a chief justice of the provincial people’s Court up to VND150,000,000 for the labour sector[5]. The prosecution for criminal liability for non-compliance with the order to provide documents and evidence without a justifiable reason will not be imposed on legal entities, such as enterprises, as prescribed in Articles 76 and 383 of the Criminal Code.
2. Who is responsible when the information and documents are disclosed to the public, social media, or a third party?
As mentioned above, for agencies conducting proceedings, persons conducting proceedings must ensure occupational and trade secrets of litigants at their legitimate request[6]. Therefore, if the submission of documents and evidence at the Court’s order results in leakage to the media, social network or a third party, which eventually creates a significant loss to the Company despite it has requested the Court to keep produced information in confidentiality, the State will be responsible for the incident and compensation for its consequence. The on-duty person liable for this incident must reimburse the State the amount that has been paid out to compensate for losses to the company in question[7]. The Court in charge of the case is also the one in charge of disbursement of the compensation[8].
Please note that the State is only liable to compensate losses that are fully supported by the following grounds[9]:
- The unlawful act of the on-duty person is identifiable, on which a claim for corresponding compensation is based;
- There is an actual loss that falls within the State’s liability for compensation; and
- There is a causation between the actual loss and the unlawful act.
[1] Article 124.3 of the Labour Code
[2] Article 91.1 (b) of the Civil Proceedings Code
[3] Article 489.3 of the Civil Proceedings Code
[4] Article 13.3 and Article 109.2 of the Civil Proceedings Code
[5] Article 3.1(e) and 48 of the Law on Handling Administrative Violations
[6] Article 13.3 of the Civil Proceedings Code
[7] Article 14.2(c) of the Law on State Compensation Liability
[8] Article 3.7 of the Law on State Compensation Liability
[9] Article 7 of the Law on State Compensation Liability
