HÃNG LUẬT DHP

Guidance on handling cases in which a labor dispute case has many claims, including the requirement to bring the mediation at the grassroots level before initiating a lawsuit.

Answer: Lawyer Tran Duc Hung – DHP law firm said as follows:

According to the provisions of the Labor Code, there are labor disputes that must go through the conciliation procedure at the grassroots before filing a lawsuit at the Court. Specifically, Article 201 of the Labor Code stipulates that the following disputes must be conciliated first at the grassroots level:

1. Individual labor disputes between employees and enterprises (except for disputes that do not require basic conciliation mentioned below);
2. Collective labor disputes over rights;
3. Collective labor disputes over interests;

On the other hand, the Labor Code also stipulates that there are disputes that are not required to be conciliated at the grass-roots level that the litigants can initiate a lawsuit right at the Court, for example: Disputes about disciplinary action in the form of dismissal or a dispute over the case of unilateral termination of the labor contract; on compensation for damage, allowance for termination of labor contract; disputes between domestic workers and employers; disputes over social insurance in accordance with the law on social insurance, about health insurance in accordance with the law on health insurance; Disputes over compensation for damage between workers and enterprises or non-business units sending workers to work abroad under contracts.

Thus, in the case of a labor dispute in which the plaintiff has many requests, including a request to bring to the grass-roots conciliation before filing a lawsuit, if there is a request, the plaintiff can initiate a lawsuit immediately, in fact, the Court The judgment is as follows:

1. If the plaintiff’s claims are in the same case and are related to each other, the Court will not immediately accept the case but guide the involved parties to carry out the conciliation procedures at the grassroots first;
2. If the petitioners’ claims are separate and independent from each other, the Court may accept and deal with the requests in advance that are not required to conciliate through the premises; For requests that require grassroots conciliation, the Court will guide the involved parties to carry out the grassroots conciliation procedures before carrying out the lawsuit procedure.

To illustrate the above guidelines, I would like to quote the content of a case as follows:

According to Plo.vn: The People’s Court of Nha Be District (HCMC) has just conducted a first-instance trial, dismissing the entire petition of Mr. Vo Phi Hung, former Director of the Bank for Agriculture and Rural Development of Vietnam (Agribank) Phuoc Kien Branch.

Previously, Mr. Hung filed a lawsuit asking the court to cancel Decision No. 721 (temporary suspension of the position of branch director) and Decision No. 18 (remission of the position of branch director) that Agribank’s Board of Members (Board of Members) issued to him. He also asked Agribank to publicly apologize to him throughout the Agribank system, and to pay salaries and benefits totaling more than 380 million VND. In addition, he asked Agribank to compensate for non-contractual damages of more than 960 million VND due to mental breakdown, which led to the parties being late in working with partners and being fined by the partners.

Agribank: There are mistakes in management and administration

According to Mr. Hung’s petition, he has been employed at Agribank since 1983. In 2013, he was appointed director of Agribank Phuoc Kien Branch.

In September 2014, Agribank’s Board of Directors issued Decision No. 721 to temporarily suspend the position of director of Agribank Phuoc Kien Branch for him. In early 2015, this council further issued Decision No. 18 to dismiss him from the position of director of Agribank Phuoc Kien Branch.

After the complaint about the above two decisions was not resolved, Mr. Hung filed an application to terminate the labor contract and was accepted by Agribank from September 2015 (after Mr. Hung filed a lawsuit at the District People’s Court). Nha Be).

Meanwhile, working with the court, the representative of Agribank presented: During his tenure as director of Agribank Phuoc Kien Branch, Mr. Hung had many mistakes in management and administration, which is reflected in many inspection conclusions of the agency. authoritative. On this basis, Agribank’s Board of Directors did not discipline by dismissing but dismissed the position of director of Agribank Phuoc Kien Branch because Mr. Hung no longer had enough trust and conditions to hold this position since January 2015. Accordingly, Agribank Phuoc Kien Branch will arrange Mr. Hung to do another job and change the salary range to specialists. But then Mr. Hung applied for a three-month unpaid leave of absence. Although Agribank disagreed, Mr. Hung still voluntarily stopped coming to the office.

On the other hand, the representative of Agribank said that Mr. Hung’s salary has been fully paid by the bank through the account in accordance with regulations. Since then, Agribank’s representative asked the court to reject all of Mr. Hung’s petition.

Court of First Instance: Exemption from duty

At the first-instance trial, the representative of the People’s Procuracy of Nha Be district suggested that the jury reject all of Mr. Hung’s request because Agribank did not discipline him but dismissed Mr. Hung from the position of director in management and administration of Mr. organization and operation of Agribank. The issue of Agribank’s Decision No. 721 and No. 18 is legal, there is no fault, so Mr. Hung’s claim for damages is groundless.

The representative of the Procuracy also requested the trial panel to suspend the settlement of the dispute related to wages that Mr. Hung demanded to pay because he was not eligible to sue because he had to go through the conciliation procedure at the premises of the labor mediator first. when suing.

The jury found that Decision No. 721 was issued in the correct form and content because it was consistent with the charter and operation organization of Agribank, on the basis of the denunciation settlement conclusion. Decision No. 18 is also correct in form and content because it was issued in accordance with the authority based on the conclusions and notices of the Inspection Committee of the Party Committee of the banking sector in Ho Chi Minh City, reporting the results of internal audit. Department of Agribank Phuoc Kien Branch.

These documents show that Mr. Hung has committed very serious and systematic mistakes and in all aspects of the branch’s operations, which has been causing bad consequences for the branch and the reputation of Agribank. Agribank does not deal with dismissal, but dismissal from office is in accordance with Agribank’s charter and operation organization. Since then, the jury has rejected Mr. Hung’s request to cancel Decision No. 721 and No. 18 and request Agribank to apologize publicly throughout the Agribank system.

Regarding Mr. Hung’s request to pay salary and benefits totaling more than 380 million VND, the jury found that there was no basis because Agribank had paid in full. On the other hand, this request has not yet been conducted by the labor mediator at the establishment before the lawsuit is filed, so the panel has suspended the settlement of this part of the dispute because there are not enough conditions to initiate a lawsuit.

In addition, the jury also found that Mr. Hung’s claim to Agribank for extra-contractual damages of more than 960 million dong was groundless and unacceptable. Because as analyzed, the two decisions above are legal and do not affect his spirit. Mr. Hung is a branch leader, working for the bank, not doing his own business outside, so he is not directly affected by these two decisions. The evidence provided by Mr. Hung is not enough to satisfy the non-contractual compensation claim under the Civil Code that there must be an illegal act and the cause-and-effect relationship between the damage occurred and the illegal act due to intentional fault. or unintentionally.

In the end, the trial panel dismissed all of Mr. Hung’s petitions. It is known that Mr. Hung appealed to the appellate court to correct the entire first-instance judgment.

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