7 Essential Tips to Safeguard Employee Rights During Enterprise Reorganization in Vietnam

 Enterprise reorganization is a strategic business process that can significantly impact employees. In Vietnam, such reorganization may involve the division, separation, consolidation, merger, or transformation of an enterprise.

A key concern during this process is ensuring employee rights during enterprise reorganization in Vietnam.

Employers must follow not only the legal procedures for restructuring but also address the rights and well-being of their workforce to avoid disputes and ensure compliance. 

Among the different forms of business restructuring, the separation of an enterprise presents specific legal and practical challenges.

Companies need to carefully plan and execute the process to protect employee rights during enterprise reorganization in Vietnam and to comply with local labour laws in Vietnam. Failing to do so can lead to labour disputes in Vietnam and negatively affect the company’s reputation and operations.

Legal Framework for Employee Rights During Enterprise Reorganization in Vietnam

Vietnamese labor laws provide a framework that protects employee rights during enterprise reorganization in Vietnam.

The reorganization process requires careful handling of employment contracts, allocation of the workforce, and compliance with legal requirements to ensure that employees are treated fairly.

Companies undergoing reorganization must prioritize the protection of employee rights to avoid potential legal consequences and ensure business continuity.

Managing Employment Contracts and Workforce Allocation

When an enterprise undergoes separation or any other form of restructuring, the handling of existing employment contracts is a critical concern.

Employers must decide which employees will stay with the original (transferor) company, which will move to the newly formed (transferee) company, and how to amend or terminate contracts without violating employee rights during enterprise reorganization in Vietnam.

Vietnamese labor law requires employers to act in good faith and ensure that employees’ interests are considered throughout the reorganization process.

For example, if an employer decides to retain certain employees, it is essential to revise existing labor contracts to reflect the new organizational structure.

Employers must ensure that contract amendments are lawful and fair, upholding employee rights during enterprise reorganization in Vietnam.

By addressing these matters appropriately, companies can avoid potential disputes and maintain a positive relationship with their workforce.

Developing a Comprehensive Employment Plan

To ensure employee rights during enterprise reorganization in Vietnam are upheld, companies must develop a comprehensive employment plan.

This plan should outline how the workforce will be managed during the reorganization, including details about which employees will continue in their roles, those who will be retrained, and any potential layoffs.

Key components of the employment plan include:

1. List and Number of Employees to Be Retained: Specify which employees will continue to be employed, along with their roles and any changes to their contracts. This is essential for maintaining continuity and respecting employee rights during enterprise reorganization in Vietnam.

2. Retraining Programs: Identify employees who may need retraining to transition into new roles. This step ensures that employee rights during enterprise reorganization in Vietnam are preserved by offering staff opportunities to adapt to new responsibilities.

3. Employees Eligible for Retirement: Outline any retirement options or early retirement incentives, thereby supporting employee rights during enterprise reorganization in Vietnam and enabling a smoother transition for older employees.

4. Transition to Part-Time Work: Consider offering part-time positions instead of layoffs to help manage labor costs while preserving jobs, a measure that supports employee rights during enterprise reorganization in Vietnam.

5. Termination of Labor Contracts: Clearly state the procedure for terminating contracts if necessary, ensuring compliance with legal standards that protect employee rights during enterprise reorganization in Vietnam.

6. Financial Resources for Implementation: Allocate sufficient funds to implement the employment plan effectively, including compensation packages, retraining, and severance pay to uphold employee rights during enterprise reorganization in Vietnam.

Creating an employment plan with input from labor representatives ensures transparency and fairness, helping businesses maintain trust with their workforce and avoid legal issues.

Legal Obligations Regarding Job Loss Allowance

During enterprise reorganization, companies may face situations where reducing the workforce is unavoidable.

When this happens, it is crucial to provide appropriate compensation to protect employee rights during enterprise reorganization in Vietnam.

Vietnamese labor law stipulates that employers must pay a job-loss allowance to employees who have been working regularly for 12 months or longer and are let go due to restructuring.

This allowance is calculated based on the length of service and the average wage earned during the six months before termination, ensuring that employee rights during enterprise reorganization in Vietnam are respected.

Employers must handle these allowances with care, as mismanagement can lead to labour legal disputes.

To uphold employee rights during enterprise reorganization in Vietnam, businesses should consult with employment law solicitors in Vietnam to ensure compliance with regulations and avoid any potential issues.

The Role of Employment Law Solicitors

Given the complexity of protecting employee rights during enterprise reorganization in Vietnam, companies should seek legal guidance early in the process.

Employment law solicitors can provide expert advice on compliance, help draft and amend labor contracts, and assist in resolving disputes.

By involving solicitors, businesses can better navigate the legal intricacies of reorganization and ensure that employee rights during enterprise reorganization in Vietnam are maintained.

Legal professionals can also play a vital role in facilitating communication between employers and employees, helping to clarify changes, negotiate new terms, and resolve any concerns that may arise.

Ensuring employee rights during enterprise reorganization in Vietnam is not only a legal requirement but also essential for maintaining a positive organizational culture and avoiding disruptions to business operations.

Ensuring Clear Communication and Dispute Avoidance

One of the main challenges during enterprise reorganization is managing employee concerns and avoiding disputes.

Misunderstandings or perceived unfairness can lead to legal battles and damage the company’s reputation. To prevent this, businesses should prioritize clear, honest, and proactive communication with their workforce, ensuring that employees understand their rights and the company’s plans.

By engaging employees early and being transparent about the reorganization process, employers can better protect employee rights during enterprise reorganization in Vietnam.

This involves explaining how changes will impact individual roles, outlining any support available, and addressing concerns promptly.

Employers should also establish clear dispute resolution mechanisms, including internal grievance procedures and access to mediation services, to handle any conflicts that may arise.

Practical Tips for Upholding Employee Rights During Enterprise Reorganization in Vietnam

To effectively manage the reorganization process and protect employee rights during enterprise reorganization in Vietnam, businesses should consider the following practical tips:

1. Early Planning and Legal Consultation: Begin the process by consulting with employment law experts. This will help identify potential legal challenges and ensure that employee rights during enterprise reorganization in Vietnam are a core focus of the reorganization strategy.

2. Comprehensive Documentation: Keep detailed records of all changes, agreements, and communications with employees. Clear documentation can help resolve disputes and demonstrate that the company has upheld employee rights during enterprise reorganization in Vietnam.

3. Employee Involvement: Engage employees and their representatives in discussions about the reorganization. This inclusive approach builds trust and ensures that employee rights during enterprise reorganization in Vietnam are respected.

4. Transparent Communication: Clearly explain how the reorganization will affect employees and provide regular updates throughout the process. Transparent communication reinforces employee rights during enterprise reorganization in Vietnam and can help ease the transition.

5. Financial Preparedness: Allocate sufficient resources to handle job-loss allowances, retraining programs, and any other costs associated with protecting employee rights during enterprise reorganization in Vietnam.

Conclusion: Upholding Employee Rights During Enterprise Reorganization in Vietnam

The reorganization of an enterprise, whether through separation, division, consolidation, or merger, involves numerous legal and practical challenges.

For businesses operating in Vietnam, it is vital to ensure that employee rights during enterprise reorganization in Vietnam are protected at every stage of the process. This requires careful planning, legal compliance, and clear communication with the workforce.

By developing comprehensive employment plans, engaging with employment law solicitors, and maintaining transparency, businesses can navigate the complexities of enterprise reorganization effectively.

Protecting employee rights during enterprise reorganization in Vietnam not only ensures compliance but also helps maintain a positive organizational culture, fostering trust and cooperation even during times of significant change.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

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7 Crucial Steps to Sue the Employer in Vietnam for Unlawful Termination

If you would have faced unlawful termination from your job, you would be feeling a mix of anger, frustration, and uncertainty about what to do next. However, you need to get past the emotion part and focus on what best you could get out of the situation rationally.

You might look around and realize that, in Vietnam, the labor law is generally geared toward providing more protection to employees from unfair dismissal. However, many workers are unaware of their rights or how to take action.

In reality, many foreign expatriates who face financial constraints due to unpaid salaries often leave the country without taking action against their employers, hesitating to engage labor dispute lawyers in Vietnam. However, after reading this, if you are one of them, you might reconsider, as the rewards could outweigh the investment.

In the following, we would give you some ideas on the necessary steps to sue the employer in Vietnam for wrongful termination and improve that chance to get the justice you deserve. You might think that as lawyers in Vietnam, as you ask, we sue the employer immediately. But we of course do try amicable ways first and in here will break down the legal process and explain each step clearly so you can move forward with confidence.

Also note that, another incentive is that, the court fee in labour dispute is not based on the claimed amount therefore it is not a huge financial burden to start a lawsuit in labour dispute in Vietnam.

7 Crucial Steps to Sue the Employer in Vietnam for Unlawful Termination

Introduction: Understanding Unlawful Termination in Vietnam

Before diving into how to sue the employer in Vietnam, it’s essential to understand what constitutes unlawful termination.

Under Vietnam’s Labor Code, an employer cannot terminate a labour contract arbitrarily.

Termination must comply with legal requirements, which include:

• Providing a valid reason (such as poor performance or misconduct or employer’s financial difficulties).
• Giving the required notice period (which varies depending on the nature of the employment).
• Following procedural steps in line with Vietnamese labor law.

Common cases of unlawful termination include dismissals without notice, dismissals based on discriminatory practices, or dismissals without a valid reason as specified in the Labour Code.

Now that we have covered the basics, let us explore the steps you can take to sue the employer in Vietnam if you believe you’ve been unlawfully terminated.

Confirm That the Termination Is Unlawful

The first and most critical step before deciding to sue the employer in Vietnam is to confirm whether your dismissal was truly unlawful.

You would need to evaluate if your termination breaches any provisions under the Vietnam Labor Code, such as:

• Lack of a legitimate reason for dismissal.
• Breach of notice periods.
• Firing due to discriminatory reasons, such as age, gender, or religion.
• Retaliation for filing a complaint or whistleblowing.

If any of these conditions apply, your employer may have violated the law, giving you grounds to sue them.

How to Gather Evidence

To build a strong case, it’ is important to gather evidence of your wrongful termination. This includes:

• A copy of your labor contract.
• Written communication (such as termination letters, emails, or messages) from your employer.
• Witnesses who can testify to events leading up to the dismissal.
• Any performance reviews or other employment records that contradict your employer’s claims.

By gathering this evidence early on, you can better prepare yourself for the legal battle ahead.

Seek Legal Advice from a Labour Lawyer

To successfully sue the employer in Vietnam, hiring a qualified labour lawyer in Vietnam with track record is crucial. Labour laws can be complex, and an experienced dispute lawyer in Vietnam will guide you through the complexities of legal processes, ensuring you are making the right moves every step of the way.

Choosing the Right Lawyer

When selecting a lawyer, make sure they specialize in labour disputes and have experience handling cases of unlawful termination. Such lawyer will:

• Assess the strength of your case.
• Help you gather and present evidence.
• Represent you during negotiations with the employer.
• Assist with filing the lawsuit if negotiations fail.

The cost of hiring a labour lawyer in Vietnam varies, but many offer an initial consultation to evaluate your case, which can be invaluable. It is important to consider how well you could communicate with the lawyer because it gives you comfort and that you have work with the lawyer in a team. But remember they are not allowed to promise you will win.

Attempt Mediation with Your Employer

Before filing a lawsuit to sue the employer in Vietnam, you are typically required to go through a mediation process. Vietnam’s labour law encourages dispute resolution through mediation to avoid court battles. The goal here is to negotiate with your employer to reach a mutual agreement.

How Mediation Works

Mediation sessions are usually overseen by a labour mediator who works at the local Department of Labor, Invalids, and Social Affairs (DOLISA). Both you and your employer will present your arguments, and the mediator will try to help both parties come to an amicable solution. This process is designed to be quicker and less costly than a formal lawsuit.

However, if mediation fails or your employer refuses to cooperate, you can proceed to the next step and formally sue the employer in Vietnam. In our experience, majority of cases lead to litigation however the mediation could still exist in different formats i.e. with the judge acting as mediator.

File a Complaint with the Labour Department

If mediation does not resolve the issue, your next move is to file a formal complaint with the Department of Labor, Invalids, and Social Affairs (DOLISA). This is a critical step in the process to sue the employer in Vietnam.

Steps for Filing a Complaint

1. Submit a Written Complaint: Draft a clear, concise complaint outlining the details of your wrongful termination. Include copies of relevant documents, such as your labor contract, termination letter, and any evidence gathered.
2. DOLISA Review: The department will investigate your complaint, reviewing both sides of the dispute. They may summon you and your employer for further discussions and additional mediation attempts.
3. Resolution: If the DOLISA finds in your favor, they will issue a formal decision requiring your employer to rectify the situation, which may include reinstatement or compensation. However, if this doesn’t resolve the issue, you can escalate the matter by going to court.

Prepare to Sue the Employer in Vietnam in Court

If mediation and filing a complaint do not result in a satisfactory resolution, the next step is to escalate your case to a labour court. This is where you will officially sue the employer in Vietnam for wrongful termination.

Filing the Lawsuit

To initiate legal action, your lawyer in Vietnam will need to file a lawsuit with the Provincial People’s Court.

Here’s what you should prepare:

• A detailed petition explaining the nature of the unlawful termination.
• All evidence that supports your case, including documents and witness statements.
• The desired outcome, whether it’s reinstatement, compensation, or both.

Timeline and Costs

The court process can take anywhere from a few months to over a year, depending on the complexity of the case. Legal fees and court costs vary, but your lawyer can give you an estimate based on your specific situation.

Present Your Case in Court

Once your lawsuit is filed, the court will set a date for your hearing. This is where you or your lawyer will argue your case, aiming to prove that your termination was unlawful. If you are foreigner, you do not need to be in Vietnam. You could appoint the lawyer to represent you at court.

Tips for a Successful Court Case

• Prepare Thoroughly: Make sure all your evidence is organized and ready to be presented. Your lawyer will likely cross-examine your employer, so being well-prepared is essential.
• Stay Professional: Although it’s natural to feel emotional during this process, staying calm and professional will reflect well on your character during court proceedings.
• Be Patient: Lawsuits can take time, and patience is key. Trust your legal team and follow their guidance throughout the process.

Collect Compensation or Secure Reinstatement

If the court rules in your favor, the court’s judgment will typically fall into one of two categories:

• Compensation: If reinstatement is not feasible, the court may award you compensation for lost wages, emotional distress, and other damages.
• Reinstatement: In some cases, the court may order your employer to reinstate you in your previous position. This can also include back pay for the time you were unlawfully terminated.

Your employer will be legally required to comply with the court’s judgment. If they fail to do so, additional legal measures can be taken to enforce the ruling.

Conclusion: Protecting Your Rights and Taking Action

Facing unlawful termination is a stressful experience, but by following the proper legal channels, you can hold your employer accountable. The process to sue the employer in Vietnam for wrongful termination may seem challenging at first, but with the right guidance, preparation, and legal support, you can achieve a fair outcome.

It is important to remember that labour laws in Vietnam are designed to protect employees like you from unjust treatment. By taking decisive action, not only do you safeguard your rights, but you also set a precedent that can deter employers from engaging in unlawful practices in the future.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

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When Should the Employer Send Notice of Termination of Labour Contract to Employee Before Contract Expiration?

 To ensure the compliance with law, it is suggested to seek advice from employment lawyers in Vietnam. The following is the initial guidance for consideration and reference.

When employer can terminate labour contract?

Expiration is one of the circumstances which permit termination of labor contract under the Labor Code. Accordingly, the employer must inform in writing to the employee of the terminating date of labor contract at least 15 days prior to the expiration.

Termination of labor relationship in each circumstance must follow different conditions and procedures to ensure the interests and obligations of both employee and employer and avoid potential labor disputes.

Previously, an administrative penalty was applied to violations of the labor contract termination notice mentioned above.

If the employer fails to inform the employee, the employer will be subject to a warning or a fine with amount from VND 500,000 to VND 1,000,000. However, the Decree 28/2020/ND-CP issued on March 1st, 2020 by the Government has repealed sanction for this behavior.

If the employee continues to work upon expiration of labor contract, both parties will be required to sign a new labor contract within the next 30 days, otherwise the signed contract will become an indefinite-term. Failure of the employer to inform the labor contract termination to the employee does not mean that the labor relationship is automatically extended after the expiration. If both parties fail to sign a new labor contract within the next 30 days, but the employee still do normal assigned job and is paid a full monthly salary, an indefinite-term labor contract is deemed as entered into by them. Any disputes arising out then will be settled based on provisions of indefinite term labor contract and laws.

The Labor Code 2019 repealed the employer’s informing responsibility upon expiration of labor contract except in a few circumstances such as the employee being sentenced to imprisonment, disciplined, expelled,… the employer is required to inform the employee in writing the termination of the labor contract.

How employment lawyers in Vietnam could help?

Employees as well as the labor collective and employers should pay attention to selecting the most appropriate and optimal resolution solution when labor disputes occur. It is also suggested to consult with employment lawyers in Vietnam of law firm specializing in employment matters for efficiency.

Nguồn: https://antlawyers.vn/library/when-should-the-employer-send-notice-of-termination-of-labour-contract-to-employee-before-contract-expiration.html

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What Are the Order of Disciplining Employee in Vietnam?

 

What is labour discipline in Vietnam?

Labour discipline is the provisions on compliance matters relating to work time, technology and production and business management in labor regulations.  But how to ensure the employer could apply the right labour discipline?  Many employers only seek consultation from lawyers at labour law firms in Vietnam for guidance when it is too late.

In general, it can be understood simply that when an employee violates the labor regulations, depending on the extent and regulations of the company, he or she will be subject to disciplinary action.

The order of disciplining labor is conducted in accordance with the provisions of labour code in Vietnam. Failing to follow the order of discipline would lead to potential disputes which both employer and employee should consult with dispute lawyers at labour law firms in Vietnam for advice to protect their best interests.

What are order of disciplining employee in Vietnam?

Firstly, the employer must confirm the employee’s violations

In the cases where an employee found committing a violation, the employer shall issue an offence notice, inform the employee representative organization (or the employee’s parent or legal representative if the employee is under 18) in order to hold a disciplinary meeting.

Secondly, issuing notice of the disciplinary meeting

This step is only carried out in case the employer detects violations of labor discipline after the time when the violation has occurred, there are sufficient grounds to prove the fault of the employee and the statute of limitations for disciplining.

The employer sends the notice with the content, time and place of the meeting to handle the labor discipline to the organization representing the labor collective at the grassroots level; workers; In the case of a person under 18 years old, there must be the participation of a parent or legal representative.

The employer must ensure these recipients receive notice before the meeting takes place and conduct a labor discipline meeting with the participation of the notification components.

Thirdly, conducting a disciplinary meeting

It is mandatory to have the minutes of the disciplinary meeting, which have to be approved by the participants before the end of the meeting. The minutes shall bear the participants’ signatures. If any participant that refuses to sign the minutes, there should be explanation.

Fourthly, disciplinary decisions

The person that concludes the employment contract on the employer’s side also has the power to issue the disciplinary decision. The disciplinary decision shall be issued before expiration of the original or extended time limit for penalty imposition specified the labour code.

The disciplinary decision shall be sent to the employee (or his/her parent or legal representative if the employee is under 18) and the employee representative organization.

How lawyers at labour law firms in Vietnam could help?

Lawyers at labour law firms in Vietnam will be able to assist through out the process at an early stage of the potential labour disputes for either employer or employee to protect the justice, and to protect the best interests of parties involved through making sure that all procedures have to follow the regulations of labour code.  When there is a sign of violation, the employment lawyers at labour law firms in Vietnam will help advise and represent to achieve the suitable resolution based on the scenarios arisen.   

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