Joint Circular No. 02-TT/LN guiding the jurisdiction of the People's Court in handling certain labor disputes

JOINT CIRCULAR

REGARDING THE GUIDANCE ON THE IMPLEMENTATION OF THE COURT'S JURISDICTION IN RESOLVING CERTAIN LABOR DISPUTES

CONCERNING LABOR DISPUTES

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WHILE ADOPTING THE LABOR CODE TO FULLY REGULATE THE COURT'S JURISDICTION AND PROCEDURES FOR RESOLVING LABOR DISPUTES, THE STATE COUNCIL ISSUED DECISION NO. 10/HĐBT ON JANUARY 14, 1985, TRANSFERRING THE FOLLOWING MATTERS TO THE COURT FOR ADJUDICATION AFTER THEY HAVE BEEN HANDLED BY AUTHORIZED AUTHORITIES BUT THE PARTIES CONTINUE TO APPEAL OR REFUSE TO PROVIDE COMPENSATION:

a. WORKERS AND STATE EMPLOYEES WHO ARE DISMISSED AS A DISCIPLINARY MEASURE;

b. STUDENTS ATTENDING VOCATIONAL SCHOOLS IN THE COUNTRY; STUDENTS ATTENDING VOCATIONAL SCHOOLS ABROAD, TEACHERS TEACHING VOCATIONAL SUBJECTS ABROAD, AND PRODUCTION TRAINING INTERNS ABROAD WHO ARE REQUIRED TO PAY COMPENSATION TO THE STATE FOR TRAINING COSTS DUE TO DISCIPLINARY ACTIONS TAKEN AGAINST THEM;

c. PERSONS ENGAGED IN LABOR COOPERATION WITH FOREIGN COUNTRIES WHO ARE REQUIRED TO PAY COMPENSATION TO THE STATE FOR VIOLATING CONTRACTS; THOSE WHO ARE DISCIPLINARILY REQUIRED TO RETURN HOME PRIOR TO THE AGREED TERM;

d. DISPUTES BETWEEN EMPLOYEES AND PRIVATE EMPLOYERS.

AFTER EXCHANGING OPINIONS WITH THE GENERAL CONFEDERATION OF LABOR OF VIETNAM, THE SUPREME PEOPLE'S COURT, THE SUPREME PROSECUTOR'S OFFICE, THE MINISTRY OF JUSTICE, THE MINISTRY OF LABOR, AND THE NATIONAL VOCATIONAL TRAINING COLLEGE, THIS INTER-MINISTERIAL CIRCULAR IS ISSUED TO GUIDE THE IMPLEMENTATION OF THE ABOVE MENTIONED DECISION AS FOLLOWS:

I. REGARDING THE DISMISSAL OF WORKERS AND STATE EMPLOYEES

1. THE COURT SHALL ONLY HEAR APPEALS FROM WORKERS AND STATE EMPLOYEES WHO ARE DISMISSED AS A DISCIPLINARY MEASURE AND NOT APPEALS AGAINST OTHER DISCIPLINARY MEASURES (REPRIMAND, WARNING, DEMOTION IN RANK, DEMOTION IN TECHNICAL GRADE, REASSIGNMENT TO ANOTHER POSITION).

APPEALS FROM THE FOLLOWING OFFICIALS REGARDING DISMISSAL SHALL BE HANDLED BY SUPERIOR MANAGEMENT BODIES AND NOT TRANSFERRED TO THE COURT FOR HEARING:

- DEPARTMENT HEADS, DIRECTORS, INSTITUTE DIRECTORS, UNIVERSITY PRINCIPALS, AND EQUIVALENT POSITIONS;

- DIRECTORS OF DEPARTMENTS, FACTORY DIRECTORS, COMPANY MANAGERS, AND EQUIVALENT POSITIONS;

- INDIVIDUALS HOLDING POSITIONS IN THE STATE ADMINISTRATION ELECTED BY POWER ORGANIZATIONS (THE NATIONAL ASSEMBLY, THE STATE COUNCIL, THE PEOPLE'S COUNCIL).

2. THE PERSON DISMISSED MUST SUBMIT THEIR APPEAL WITHIN ONE MONTH FROM THE DATE THEY RECEIVE THE DISMISSAL DECISION. THEREFORE, THE DISMISSAL DECISION MUST CLEARLY STATE THE APPEAL DEADLINE AND BE DELIVERED TO THE APPELLANT. LATE APPEALS WITHOUT A VALID REASON WILL NOT BE CONSIDERED. THE APPEAL CAN BE SUBMITTED TO THE HEAD OF THE AUTHORITY, FACTORY DIRECTOR, PEOPLE'S COMMITTEE THAT ISSUED THE DISMISSAL DECISION, THE COURT, OR THE PROSECUTOR'S OFFICE.

THE PROSECUTOR'S OFFICE HAS THE RIGHT TO BRING CHARGES AGAINST DISMISSALS THAT VIOLATE THE LAW. THERE IS NO TIME LIMIT FOR BRINGING CHARGES. THE CHARGE DECISION SHALL BE SENT TO THE COURT AND THE ORGANIZATION THAT ISSUED THE DISMISSAL DECISION.

3. THE COURT WITH JURISDICTION TO HEAR APPEALS REGARDING DISMISSALS IS THE PROVINCE, CITY, OR CENTRAL SPECIAL ZONE COURT.

THE HEAD OF THE AUTHORITY, FACTORY DIRECTOR, OR PEOPLE'S COMMITTEE THAT ISSUED THE DISMISSAL DECISION MUST TRANSFER THE CASE FILE TO THE COURT WITHIN SEVEN DAYS FROM THE DATE OF RECEIVING THE APPELLANT'S APPEAL LETTER, THE PROSECUTOR'S OFFICE CHARGE DECISION, OR THE COURT'S REQUEST FOR THE CASE FILE (IF THE APPELLANT SUBMITS THE APPEAL LETTER DIRECTLY TO THE COURT).

4. THE CASE FILE TRANSFERRED TO THE COURT MUST INCLUDE THE FOLLOWING DOCUMENTS:

a. THE APPELLANT'S APPEAL LETTER (IF THEY SUBMIT IT DIRECTLY TO THE AUTHORITY, FACTORY, OR PEOPLE'S COMMITTEE THAT ISSUED THE DISMISSAL DECISION).

b. REPORTS AND MINUTES ON DISCIPLINARY VIOLATIONS, QUALITY CONTROL REPORTS, OR TECHNICAL APPRAISAL MINUTES RELATED TO DISCIPLINARY VIOLATIONS (IF ANY).

c. MINUTES FROM THE PRODUCTION UNIT, WORK UNIT, OR SOCIAL ORGANIZATION REVIEWING OR COMMENTING ON THE APPELLANT'S BEHAVIOR AND CHARACTER.

d. SELF-CRITICISM REPORTS FROM THE APPELLANT.

đ. MINUTES FROM THE DISCIPLINARY BOARD.

e. THE UNION'S OPINION ON THE DISCIPLINARY ACTION TAKEN AGAINST THE APPELLANT.

g. THE DISMISSAL DECISION ISSUED BY THE AUTHORITY HEAD, FACTORY DIRECTOR, OR PEOPLE'S COMMITTEE.

IF THE APPELLANT HAS BEEN HANDLED FOR ADMINISTRATIVE VIOLATIONS OR PROCESSED BY THE POLICE, PROSECUTOR, OR COURT, THE CASE FILE MUST ALSO INCLUDE THE PROCESSING DOCUMENTS FROM THESE AUTHORITIES (SUCH AS TAX PENALTY DECISIONS, CUSTOMS DECISIONS, ACQUITTAL DECISIONS, JUDGMENTS, ETC.).

THE COURT MAY REQUIRE THE DISCIPLINARY DECISION MAKER TO PROVIDE ADDITIONAL DOCUMENTS.

5. WHEN HEARING APPEALS FROM APPELLANTS OR PROSECUTOR CHARGES REGARDING DISMISSALS, THE COURT MUST ENSURE BOTH SIDES: THE RIGHT OF AUTHORITY HEADS, FACTORY DIRECTORS, AND PEOPLE'S COMMITTEES TO APPLY DISCIPLINE PROPERLY AGAINST WORKERS AND STATE EMPLOYEES WHO VIOLATE DISCIPLINE SERIOUSLY AND THE RIGHT OF WORKERS NOT TO BE DISMISSED ARBITRARILY AND ILLEGALLY. THEREFORE, THOSE DISMISSED MUST BE THOSE WHO CANNOT CONTINUE WORKING ANY LONGER BECAUSE THEY HAVE SERIOUSLY VIOLATED RESPONSIBILITY REGULATIONS, LABOR DISCIPLINE, PROTECTION OF PUBLIC PROPERTY, SERVICE TO THE PEOPLE, AND LABOR DISCIPLINE RULES, COMMITTED REPEATED ERRORS AND SHORTCOMINGS SYSTEMATICALLY, BEEN DISCIPLINED WITH REPRIMANDS AND WARNINGS BUT DID NOT IMPROVE, OR COMMITTED SERIOUS SHORTCOMINGS FOR THE FIRST TIME CAUSING SIGNIFICANT HARM TO POLITICS AND ECONOMY, AND NO LONGER QUALIFY AS WORKERS OR STATE EMPLOYEES. EXAMPLES INCLUDE:

- FREQUENTLY FAILING TO COMPLETE TASKS WITHOUT A VALID REASON OR INTENTIONALLY NOT COMPLYING WITH SUPERIOR DIRECTIVES AND RESOLUTIONS;

- DISREGARDING TECHNOLOGICAL PROCEDURES, TECHNICAL STANDARDS, SAFETY RULES, AND SANITARY STANDARDS, CAUSING SERIOUS DAMAGE TO SOCIALIST PROPERTY OR CAUSING SERIOUS WORKPLACE ACCIDENTS;

- INTENTIONALLY NOT COMPLYING WITH INTERNAL RULES OF THE AUTHORITY OR FACTORY, FREQUENTLY CAUSING SERIOUS DISORDER, OR UNAUTHORIZED ABSENCE FROM WORK MULTIPLE TIMES, RECEIVED REPRIMANDS AND WARNINGS BUT DID NOT IMPROVE;

- EMBEZZLING, STEALING, ILLEGAL USE, DESTRUCTION OF SOCIALIST PROPERTY, SEVERE WASTAGE OF RAW MATERIALS, VIOLATION OF SECRECY REGULATIONS, ACCEPTING BRIBES, OPPRESSING THE POPULATION, ETC.

- The cases where the subject is sentenced to imprisonment as stipulated in the Recruitment and Dismissal Regulation for State Workers and Civil Servants issued by the Council of Ministers' Decree No. 24/CP on March 13, 1963, and guided by the Circular No. 14/LĐ/TT of the Ministry of Labor on June 21, 1977, regarding the implementation of that Regulation.

Those who are exempted from prosecution and criminal responsibility shall not be dismissed. In cases of suspended sentence, they shall be handled according to Points 2 and 3 of Article 44 of the Criminal Code.

6. When adjudicating, if the court finds that the decision of the management authority is correct, it shall reject the appeal of the subject. Conversely, if the court finds that the subject has been wrongfully punished without fault or shortcoming, the court must clarify this in the judgment and revoke the dismissal decision. If the court finds that the subject has committed errors or shortcomings but only requires lighter disciplinary measures, the People's Court shall also clarify this in the judgment, revoke the dismissal decision, and transfer the matter to the management authority to decide on a lighter form of discipline.

Once the court revokes the dismissal decision, the subject must return to their previous workplace and have their legitimate rights restored during the period they were dismissed.

7. The referral of appeals against dismissals to the People's Courts for adjudication applies only to matters occurring from January 14, 1985. Therefore, appeals concerning dismissals that occurred before that date will still be resolved through administrative procedures, except for cases that occurred before January 14, 1985, which have already been accepted by the People's Courts, which will continue to handle them.

II. REGARDING THE OBLIGATION OF APPRENTICES, TEACHERS IN VOCATIONAL TRAINING, PRODUCTION INTERNS, OR LABORERS COOPERATING WITH FOREIGN COUNTRIES TO COMPENSATE FOR LOSSES TO THE STATE

1. Apprentices undergoing vocational training, teachers in vocational training, both within and outside the country, production interns abroad, if they voluntarily leave school, seriously violate discipline, falsify their background, or commit crimes leading to compulsory termination of studies and repatriation before the scheduled time, or refuse to return home upon completion of studies, or refuse to comply with state assignments, must compensate the state for losses.

In cases of apprentices undergoing domestic production, the school's disciplinary council proposes the compensation amount, which is decided by the direct management authority of the school. For apprentices studying or interning abroad, the organization managing these apprentices abroad proposes the compensation amount; the Vocational Training General Department decides.

2. Based on state regulations, the International Cooperation Department of the Ministry of Labor or local Labor Departments have the authority to decide that laborers cooperating with foreign countries must compensate the state for total losses due to breach of contract, serious violation of discipline, falsification of background, or committing crimes leading to premature repatriation.

3. The decision on compensation must be handed over to the subject, who has the right to appeal to the People's Court regarding this decision. Additionally, the authority that made the compensation decision may request the People's Court to adjudicate if the subject refuses to compensate.

Appeals for compensation can be submitted to the authority that issued the compensation decision, the People's Court, or the People's Procuracy.

In cases where the People's Procuracy initiates prosecution, the indictment decision is sent to the competent People's Court for adjudication, the authority that issued the compensation decision, and the subject.

4. The People's Court with jurisdiction to adjudicate such matters is the People's Court at the district, city district, provincial city level, but if the case is difficult or complex, the Provincial People's Court, City People's Court, or Special Administrative Region People's Court under the Central Government may take over for adjudication.

The authority issuing the compensation decision must transfer the file to the People's Court within seven days from receiving the appeal letter, the People's Procuracy's indictment decision, or the People's Court's request for file transfer (in cases where the subject directly submits an appeal to the People's Court). If the authority requests the People's Court to adjudicate, the complaint and file are submitted together.

The file submitted to the People's Court must include the labor contract or the subject's commitment letter, the vocational training regulation, evidence of the subject's mistakes or shortcomings (minutes, documents, self-inspection report of the subject, tax penalty decisions, customs penalty decisions, exemption decisions, judgments...), disciplinary enforcement decisions, compensation decisions...

5. Compensation must be based on Resolution No. 362/CP of the Council of Ministers dated November 29, 1980, on cooperation in using labor with socialist countries, and Directive No. 104/HĐBT of the Council of Ministers dated June 23, 1982, on managing Vietnamese students and workers in socialist countries.

If the court finds the compensation decision by the authority to be correct, it shall reject the subject's appeal and uphold the compensation decision. If the subject refuses to compensate and the management authority requests the court to adjudicate, the court shall compel the subject to enforce the decision.

If the court finds the disciplinary enforcement decision to be incorrect, it shall revoke that decision and the compensation decision. In this case, the management authority must restore the subject's legitimate rights.

If the court finds it necessary to adjust the compensation amount, it has the authority to determine a reasonable compensation amount.

III. REGARDING DISPUTES BETWEEN EMPLOYEES AND PRIVATE EMPLOYERS

When disputes arise between employees and private employers regarding responsibilities or benefits, when adjudicating, the People's Courts must base their decisions on the temporary regulations on the responsibilities and benefits of employees and private employers issued by the Council of Ministers' Decree No. 186/CP on September 25, 1976, and guided by the Circular No. 05/LĐ-TT of the Ministry of Labor on March 12, 1977, regarding the implementation of those regulations.

IV. SOME ISSUES REGARDING PROCEDURES AT THE PEOPLE'S COURTS

1. All labor disputes are exempt from court fees.

2. In labor disputes, the authority issuing the appealed decision or requesting the court to adjudicate is a party to the dispute. The head of the authority, the factory director, or a representative of the People's Committee must appear when summoned by the court for investigation or trial, but may also appoint a representative to participate in the proceedings.

3. As a general principle, the court with jurisdiction to hear a case is the court where the defendant resides.

4. The court must verify or collect additional evidence before hearing the case and may decide on provisional emergency measures such as: enterprises temporarily providing subsistence allowances for workers and officials; temporarily seizing the assets of the person liable for compensation to ensure enforcement of the judgment, etc.

5. Prior to hearing the case, the court must mediate disputes between private owners and employees, and during the hearing, if mediation is possible, the court shall continue to mediate. However, for complaints regarding forced termination of employment or claims for state expenses, mediation is not required.

6. When the court hears a case, the representative of the People's Procuracy shall participate in the session; in cases where participation is not possible, they shall submit a written conclusion to the People's Court.

7. Before hearing the case, the court needs to report to the trade union organization of the agency or enterprise where the parties worked to send a representative to attend the session and express the opinion of the grassroots trade union executive committee.

If the trade union representative is absent, the trial will still proceed.

8. When conducting a first-instance trial, it is necessary to invite representatives from trade union organizations and labor authorities who have been elected as People's Assessors to participate in the bench.

The court must render a decision within three months from the date of acceptance, and appeals and protests according to appellate, supervisory, or retrial procedures shall be carried out as for civil cases.

9. According to Article 137 of the Constitution, once a judgment has legal effect, agencies, enterprises, workers, officials, people working abroad, vocational students... involved in the case must strictly comply.

V. IMPLEMENTATION

1. Issues related to professional matters shall be guided separately by each sector.

2. Upon receipt of this Circular, five local agencies need to immediately discuss its implementation, with the participation of the same-level trade union organization. Decision No. 10/HĐBT of the Council of Ministers and this Circular need to be widely disseminated locally.

3. The People's Courts' handling of matters prescribed in Decision No. 10/HĐBT of the Council of Ministers is very new and complex, so prior to hearing the case, the People's Court should seek the opinions of labor authorities and trade unions.

The People's Court needs to seek the opinions of higher-level People's Courts for important and complex matters, while higher-level People's Courts need to have plans to monitor and timely guide lower levels.