Giải quyết tranh chấp về đơn phương chấm dứt hợp đồng lao động theo pháp luật việt nam từ thực tiễn xét xử của tòa án nhân dân tại thành phố hồ chí minh tt tiếng anh

Research purpose and tasks The dissertation aims to clarify the theoretical and practical issues on unilaterally and solving disputes on unilaterally terminating labour contracts of the

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

L

PHAM THI THU PHUONG

TERMINATING LABOUR CONTRACTS UNDER THE VIETNAMESE LAW: A CASE STUDY OF THE PEOPLE’S

COURT IN HO CHI MINH CITY

The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences

Supervisor: Assoc Prof Dr Bui Anh Thuy

Reviewer 1: Prof Dr Le Hong Hanh

Reviewer 2: Assoc Prof Dr Le Thi Chau

Reviewer 3: Dr Bui Ngoc Cuong

The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi

Time: ………… date ……… month …… …year 2019

The dissertation may be found at:

- Vietnam National Library;

- Graduate Academy of Social Sciences Library

INTRODUCTION

1 The necessity of the research topic

Ho Chi Minh City (HCMC) is a key area of the economic development of the Southeast region, the service center of Southeast Asia with the largest number of businesses and employees in Vietnam According to the Center for Human Resource Forecast and Labor Market Information of HCMC, by 2020, HCMC needs 320,000 jobs, including 130,000 new ones However, along with the above development, labour cases in HCMC are therefore always large in number and complicated in content

In fact, the two-tier People’s Court in HCMC still faces many difficulties and obstacles in the practice of judging these cases, so the effectiveness of the trial has not been achieved as expected

One of the reasons for the above situation is that unilateral termination of labor contracts to be a complicated dispute The provisions of the Labor Code 2012 (which took effect since May 1, 2013) have greatly contributed to the adjustment of labour relations but still have some inadequacies while the complexity of unilateral termination of labor contracts tends to increase The inconsistency in solving disputes and assessing evidence among proceeding-conducting persons leading to different consequences, judgment annulling or judgment correction due to procedural violations

From reasons mentioned above, it is necessary to examine and assess provisions of Vietnamese existing law, and to selectively acquire the advances of international law and of countries around the world so as to provide solutions to improve Vietnamese law Therefore, the author has

chosen research work titled “Solving disputes on unilaterally

terminating labour contracts under the Vietnamese law: A case study of the People’s Court in HCMC” as her doctoral dissertation in law

2 Research purpose and tasks

The dissertation aims to clarify the theoretical and practical issues on unilaterally and solving disputes on unilaterally terminating labour contracts of the two-tier People’s Court in HCMC so as to propose solutions to improve the law on unilaterally and unilateral dispute settlement to terminate the labour contracts

3 Research subject and scope

3.1 Research subject

First, provisions of labour law of Vietnam on contents (basis,

procedures and legal consequences) of unilaterally terminating labour contracts and civil procedures to solve disputes of unilateral termination

of labour contracts of the People’s Court

Second, the practice of solving disputes on unilaterally terminating

labour contracts of the two-tier People’s Court in HCMC

3.2 Research scope

The study just examines the law on unilaterally terminating labour contracts (basis, procedures and legal consequences) and solving disputes on unilaterally terminating labour contracts at the People’s Court The assessment of the law enforcement on solving these disputes

is conducted in HCMC (first-instance and appellate trials of the two-tier People’s Courts in HCMC (district and provincial levels) in accordance with civil proceedings)

The dissertation just considers regulations on unilaterally terminating labour contracts of employers who are Vietnamese individuals and legal entities (not studying cases that employers are

foreigner individuals or legal entities who conduct labour contracts under foreign law but working in Vietnam)

4 Methodology and research methods

4.1 Methodology

The study utilizes methodology of Marxism-Leninism on dialectical and historical materialism, Ho Chi Minh thought and viewpoints of the Communist Party of Vietnam

4.2 Research methods

The dissertation utilizes a combination of research methods including methods of analysis, statistics, systematization, interpretation and comparison

5 New contributions of the dissertation

This is the first, comprehensive and systematical research work on the theoretical and legal issues on unilateral and solving disputes on unilaterally terminating labour contracts, namely:

First, the dissertation continues to improve and develop theoretical

basis of the law on solving disputes on unilaterally terminating labour

contracts at the People’s Court

Second, the dissertation seeks to assess comprehensively and

systematically the reality of the law and practice of applying Vietnam’s existing law on solving unilateral termination of labour contracts at the People’s Court so as to point out problems and shortcomings of the existing law

recommendations to improve Vietnam’s existing law on solving disputes

on unilaterally terminating labour contracts at the People’s Court from the trial experience of a two-tier People’s Court system in Ho Chi Minh City

6 Theoretical and practical significance of the dissertation

Theoretically: the dissertation contributes to strengthening and

improving the theoretical basis on unilaterally and solving disputes on unilaterally terminating labour contracts under the Vietnamese law

Practically: the dissertation contributes to further improving the

efficiency of implementing unilateral termination of labour contracts by parties in labour relations as well as the efficiency of solving disputes

on unilaterally terminating labour contracts and labour management of the state administration

7 Structure of the dissertation

Besides the introduction and conclusion and references, the dissertation includes 4 chapters:

Chapter 1: Literature review and theoretical basis

Chapter 2: Theoretical issues of unilateral termination of labour contracts and solving disputes on unilaterally terminating labour contracts at the People’s Court

Chapter 3: The reality of the law and applying the law for solving disputes on unilaterally terminating labour contracts by the People’s Court in Ho Chi Minh City

Chapter 4: Improving the law of solving disputes on unilaterally terminating labour contracts at the People’s Court

Chapter 1 LITERATURE REVIEW AND THEORETICAL BASIS 1.1 Literature review

1.1.1 Research situation in Vietnam

In Vietnam, solving disputes on unilaterally terminating labour contracts is not a new topic and has long attracted many authors to study with different scales and levels For example, the concept of unilaterally terminating labour contracts, basis for terminating unilaterally labour contracts, order, procedures, legal consequences, as well as procedures of solving disputes on unilaterally terminating labour contracts and solutions to improve the law on solving disputes on unilaterally terminating labour contracts

Studies on unilaterally terminating labour contracts argued that Vietnamese labour law has many limitations and thus provides orientations to improve the law’s contents such as perfecting the general orientation of the labour law specific regulations on labour procedures and complete specific provisions in the Labor Code

1.1.2 Research situation abroad

In other countries, the issue of solving disputes on unilaterally terminating labour contracts has also been examined in different aspects

and levels such as A.C.L Davies published the book “Perspectives on Labour law” in 2003; “The Future of Labour law” by Catherine

Barnard, Simon Deakin and Gillians Morris, Oxford and Portland Oregon in 2004, especially John D R Craig và S Michael Lynk

published the book “Globalization and the future of labour law” in

2006

1.2.3 General assessment

First, many research works have clarified some theoretical issues on

the concept and characteristics of the law on unilaterally and solving disputes on unilaterally terminating labour contracts but there are theoretically gaps of the law adjustment to this issue

Second, research works on the practice of applying the law on

unilateral termination of labour contracts (applying basis, order, procedures, legal consequences) are greatly interested in while applying the law for solving disputes on unilaterally terminating labour contracts

at the People’s Court (jurisdiction, statute of limitations, order and procedures) are still very limited

Third, solutions to improve the law on unilaterally and solving

disputes on unilaterally terminating labour contracts, some research works have made specific recommendations based on the analysis of situation of the law as well as the application in practice

1.1.4 The issues need to be further examined in the dissertation

First, the dissertation seeks to examine theoretical issues of solving

disputes on unilaterally terminating labour contracts such as concepts, characteristics, significance and contents of legal adjustment on unilaterally and solving disputes on unilaterally terminating labour contracts

Second, from the practice of solving disputes on unilaterally

terminating labour contracts in HCMC, the dissertation tries to assess the efficiency of adjustment of the existing Civil Procedure Code when solving disputes and is it necessary to enact a separate law to regulate this type of dispute?

Third, the dissertation summarizes the lessons learned from the

practice of trial so as to provide specific solutions to improve the

efficiency of solving these cases in the context of international economic integration of Vietnam

1.2 The theoretical basis

First, Marxism - Leninism, Ho Chi Minh thought on the role of the

State, the relationship between state power and the protection of citizens’ democratic freedoms (rights of disputing parties), between law and economy, between the common and the private, between social consciousness and social existence, and business freedom

Second, policies and guidelines of the Communist Party of Vietnam

and the laws of the State of the Socialist Republic of Vietnam

Third, the theory of equality before the law

Fourth, the theory of the rights to access to justice of citizens and the

role of the court in solving disputes on unilaterally terminating labour contracts

Fifth, the theory of respecting for the rights to self-determination of

parties in the labour relations, from the conclusion of the labour contract

to the termination of the labour contract and solving disputes

Sixth, the theory of limiting freedom of parties in labour relations

1.2.1 Research questions, research hypotheses and research findings

Q1: What are characteristics of unilateral termination of the labour contracts and the requirements for solving disputes on unilaterally terminating labour contracts in general and solving disputes in the People’s Court in particular?

Q2: What is the role of solving disputes on unilaterally terminating labour contracts for production stability, social stability and economic development?

Q3: What are the contents of the law on unilateral termination of the labour contract and solving disputes on unilaterally terminating labour contracts?

Q4: What are inadequacies of provisions of the law on solving disputes on unilaterally terminating labour contracts and the law enforcement in HCMC? What are the causes of such inadequacies? Q5: What are directions and requirements for improving the law on solving disputes on unilaterally terminating labour contracts?

Q6: Is it necessary to have recommendations to improve the law and which solutions to implement the law on solving disputes on unilaterally terminating labour contracts at the People’s Court from experiences of two-tier People’s Court in HCMC?

Chapter 2 THEORETICAL ISSUES OF UNILATERAL TERMINATION OF LABOUR CONTRACTS AND SOLVING DISPUTES ON UNILATERALLY TERMINATING LABOUR CONTRACTS AT

THE PEOPLE’S COURT 2.1 Theoretical issues of the law on unilateral termination of labour contracts

2.1.1 The concept of unilateral termination of a labour contract

According to Article 15 of the 2012 Labour Code, a labour contract

is an agreement between the employee and the employer on paid employment, working conditions, rights and obligations of each party in the labour relationship

The unilateral termination of a labor contract is essentially an act of expressing the will of a subject who does not want to continue performing the labor contract, can terminate the rights and obligations

of the parties under the labour contract ahead of time without depending

on the will of another party

2.1.2 Characteristics of unilateral termination of a labour contract

Unilateral termination of a labour contract is the right of the subject

in the labour relationship; the unilateral termination of the labour contract is the act stemming from the will of one party; this act may terminate the legal validity of the labour contract ahead of time or before the work is completed under the labour contract; the unilateral termination of the labour contract has diverse legal consequences

2.1.3 Significance of unilateral termination of a labour contract

For employers, this right contributes to eliminating the negative aspects in the process of using employees, creating opportunities for employers to recruit human resources in accordance with their needs

For employees, this right creates opportunities for them to find another job and employers are more suitable for them, and help them to implement labour freedom

For the State, when adjusting the unilateral termination of the labour contract, the law protects and directs the development of these relations

by the state’s subjective will, creating a legal framework to limit negative influence of unilateral termination of the labor contract in terms of economy and society

2.1.4 The adjusted contents of the law on unilaterally terminating labour contracts

2.1.4.1 The basis for unilateral termination of labour contracts

The basis for unilateral termination of labour contract by employees including working conditions are not consistent with labour contract (job arrangement, location and working condition); Employees are not paid fully salary and on time; although employees are legally depended

on employer, the employer has no right to mistreat or insult honor, dignity or impose employees do work against their desire

The basis for unilateral termination of labour contract by employer including the cause of unilateral termination of labor contract comes from employees; The cause of unilateral termination of labor contract comes from employer; The cause of unilateral termination of labor contract comes from objective reasons such natural disasters and fires

2.1.4.2 Procedures of unilateral termination of labor contracts When employees unilaterally terminate the labor contract, for

employers, in this time, can help them arranging or replacement of personnel, as well as preparing expenses to pay for the employee (if any)

When employers unilaterally terminate the labor contract, for

employees, in this time, can help them to find a new job suitable to their abilities, avoiding the income disturbance affecting their lives and family The employer’s notice in advance must be reasonable (Article

11 of Convention 158) The law of countries has various provisions on this issue

2.1.4.3 Legal consequences of unilateral termination of labor contract

The legal consequences arising from legally or illegally unilateral termination of labour contracts are different In the case of unilateral termination of the labor contract in accordance with the law, the settlement of the rights and obligations of the parties is quick and convenient, there are few disputes and complaints In contrast, unilateral termination of labour contracts is illegal, it easily occurs disputes and complaints

2.2 Theoretical issues of the law on solving disputes on unilaterally terminating labour contracts at the People’s Court

2.2.1 Concept and characteristics of unilateral dispute of terminating labor contracts

2.2.1.1 The concept of unilateral dispute of terminating labour contracts

Unilateral dispute of terminating labour contracts is defined as conflicts between employees and employer when implementing the right to unilaterally terminate the labour contracts Unilateral dispute of terminating labour contracts is essentially disputes of interests among parties in the labour relations

2.2.1.2 Characteristics of unilateral disputes of terminating labor contracts