Certains entrepreneurs étrangers locaux, ont une certaine idée de la loi, ou du moins une certaine méconnaissance de la loi. Se gardant bien de faire aux vietnamiens ce qui pourrait leur ramener les membres du comminée populaire du quartier ou les inspecteurs de ministère du travail… Ils ne se gênent pas pour autant quant il s’agit d’expatrié locaux, du fait que la plupart d’entre nous connaisse le strict minimum.
Contrairement a l’idée générale les lois Vietnamiennes protègent très bien les salaries étrangers inclus, si vous signez un contrat local, vous êtes donc soumit au droit professionnel vietnamien tel qu’un vietnamien, bin oui 2+2=4 !
En cas de renvoi abusif, n’ayez pas peur d’avoir recours a un avocat, du fait des dérives de certaines entreprises étrangères ou semi étrangère, c’est avec un grand plaisir que les tribunaux vont rappeler aux entrepreneurs étrangers que personne n’est au-dessus des lois. Et par peur de mauvaise presse, il se peut que vous n’ayez pas besoin d’aller au devant du juge.
Au lieu de vous parlez des divers cas incroyables, a la limite inhumains pour certains, que j’ai vu, mon aide sera plus concrete en vous copiant ci-dessous, un article de VNS datant de aout, ecrit par les avocats Tran Anh duc and Bui Hong Vien (VILAF- Hong duc)

Employment termination: strict rule confirmed

For the last several years, dismissal of employees has been the subject matter of most labour court cases in Viet Nam. In many cases, employees won the case because the usual assumptions of foreign investors are different from the way Vietnamese employment law operates.
Recently, Official Letter 1593 of the Ministry of Labour, Invalids and Social Affairs (MoLISA), dated 27 May 2005, has confirmed one strict interpretation of the Labour Code. This article discusses some issues that employers should be aware of to avoid being hauled to court.

Consequences of losing a labour case

If a company dismissed an employee but the court rules the dismissal was not lawful, the company would have to re-hire the employee and pay damages. The damages will be equal to the salary the employee should have been paid while out of work plus two months’ pay in accordance with Article 41 of the Labour Code.

If the company does not want to re-hire the employee, the company may have to pay higher compensation plus severance allowance to obtain the employee’s agreement to resign. The severance allowance is equal to a half month’s salary for every year of
employment.

Major types of termination

We should distinguish unilateral termination from termination by mutual agreement since
most companies are faced with cases of unilateral termination. Unilateral termination occurs when one party terminates employment against the other’s will. Termination by mutual agreement occurs when both parties agree to terminate. The employer cannot unilaterally terminate an employment unless there is a valid cause. On the other hand, there are no legal restrictions on termination by mutual agreement.

It may help to note a third type of termination: termination by expiry of the employment contract. When the company wishes to dismiss an employee for misconduct, it should first of all check the expiry date of his employment contract. If it is set to expire soon,
it is advisable to wait until that happens.

Causes for unilateral termination

It is difficult for employers to unilaterally terminate employees in Vietnam. During the validity of an employment contract, unilateral termination is permitted by law only in certain circumstances. These are (according to Article 38 of the Labour Code):

(i) the employee regularly fails to fulfill his contractual job;

(ii) disciplinary reasons;

(iii) long sickness (six months or 12 months depending on the term of the employment contract);

(iv) lay off due to force majeure; and

(v) the company’s closure or restructuring in accordance with Article 17 of the Labour Code.

If a company does not base unilateral termination of its employees on the above grounds, the termination would be deemed wrongful. So far, Vietnamese authorities have not listed other circumstances for unilateral termination by the employer even if agreed with the employee in advance.

The most common circumstance for unilateral termination is disciplinary dismissal. However, there are legal restrictions and employers should know them. Disciplinary dismissal is permitted only when the employee has done any of the following (according to Article 85 of the Labour Code):

· theft, embezzlement, disclosure of technological and business secrets or commitment of any other act that causes severe damage to the company’s assets or interests;

· repeating a breach while a disciplinary sanction has not been removed for the earlier
breach;

· repeating a breach after being demoted due to earlier breach; and

· absence for five working days in a month or 20 working days in a year without justifiable reasons.

The reference to “any other act that causes severe damage to the company’s assets or interest” gives employers some flexibility in defining restricted acts and this is supported by Circular 19 of MoLISA, dated 22 September 2003. While companies should pay more attention to the drafting of detailed dismissal provisions in their Working Regulation, it should be noted that Official Letter 1593 indicates that the employee’s act must have actually caused severe damage to the company’s assets or interests. In the absence of such an effect, dismissal based on the basis of severe damage could be challenged.

Companies should be very careful with disciplinary dismissal. The law and practice in Viet Nam differ from those in certain other countries. The concept of employees’ conflict of interests or employee loyalty is not developed here. For example, in certain other countries, corporate ethics prevents an employee from taking commission from the company’s suppliers and prevents an employee from working at the same time for both the employer and its competitor. In these countries, the breach of one of these rules may be a cause for termination.

In Viet Nam, since the concept of conflict of interest has not traditionally developed, the
court may not interpret the Labour Code against the employee in this regard. An example is illustrated below:

A salesman of a large multinational company was discovered to use that company’s distribution channel to sell goods for a competitor of the company. In other words, he worked at the same time for both his company and its competitor. The company was very upset and wanted to dismiss him.

However, the Labour Code (Article 16) explicitly permits an employee to work for several employers at the same time. Even when the company’s regulations forbid such an act, the violation may not be a valid cause for dismissal in the eye of the court. Therefore, while other forms of disciplinary action are possible (such as suspension of salary raise, job transfer or demotion), dismissal is not. In that case, the company may have to apply another form of discipline and wait for the employee to repeat the violation.

Working regulation

The Working Regulation is an important document. It must be registered with the local labour department or the Board of Management of Industrial Zones and is effective from the date of registration. Many companies fail to register their Working Regulation and so
are not able to rely on its provisions since it is not effective without registration.

Registration of the Working Regulation must be made within six months from the date of operation of a newly-established company. Working Regulation of existing companies must be updated as per the new amendment to the Labour Code and Decree 33 of the Government dated 2 April, 2003.

Dismissal procedures

Even when a company believes it has a valid cause for dismissal or termination, it is required to follow certain procedures:

(i) There must be a disciplinary meeting with all the parties concerned, including a representative of the trade union (if any);

(ii) The company must provide evidence of the employee’s violation and the employee must be given an opportunity to defend himself/herself;

(iii) The meeting must be minuted (with all theparties present signing the minutes);

(iv) The company must obtain the trade union’s agreement to the dismissal. If it does not agree, the company must report this to the local labour department and delay the dismissal for 30 days;

(v) Dismissal must be effected within three months (or six months in special circumstances) from the date of violation.

The court often interprets the Labour Code in favour of employees and a strict court
could reverse a dismissal based on procedural violations.

To sum up, there are several issues employers should take into account before any
dismissal:

First, they should ensure that the company has listed all the reasons for dismissal in its Working Regulation in accordance with Article 85 of the Labour Code.

Second, the employee’s breach has committed one of those dismissal circumstances and the effect of actual damage may be in connection with the “other act” of the employee required as mentioned in Article 85.

Third, the Working Regulation must be registered with the local authority.

Fourth, the dismissal procedure must comply with the required procedures. Alternatively, an employer may need to consider voluntary resignation by the employee or wait until the expiry of the labour contract. — VNS