In the course of work, employees can face the penalty of dismissal for many reasons. However, in order to fire a person, an enterprise must have valid grounds and reasons in accordance with the law. In fact, many enterprises fire their employee illegally. In case you do not know how to deal with this situation, follow this article from LSX legal firm: “Which court to file a lawsuit when fired illegally in Vietnam?”
Legal grounds
- Labor Code 2019
- Civil Procedure Code 2015
What is illegal dismissal?
Unlawful dismissal or dismissal means the most severe form of labor discipline of the employers. They use their management rights to issue disciplinary decisions on dismissal incompatible with the provisions of the law, forcing employees to quit regardless of the validity of the labor contract.
Regulations on dismissal of employees
Disciplinary of dismissal
An employer may only apply the disciplinary form of dismissal when:
- In the cases prescribed by the law;
- Within the statute of limitations for disciplining dismissal;
- Must comply with regulations on orders and procedures prescribed by the law.
If one of these factors is violated, the dismissal is considered illegal and the employer must bear the legal consequences of the illegal dismissal.
Cases of dismissal
According to Article 126 of the Labor Code 2019, An employer may dismiss an employee for disciplinary reasons in the following circumstances:
- The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries, or uses drugs at the workplace;
- Employee discloses technological or business secrets or infringes the intellectual property rights of the employer, commits acts that are seriously detrimental or pose a seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
- The employee repeats a violation that was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation that was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.
- The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Justified reasons include natural disasters, fires; the employee or his/her family member suffering from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Cases in which employers cannot fire employee
Employers must not fire female employees for marriage, pregnancy, maternity leave, or raising children under 12 months of age to let the employee quit and may not dismiss an employee in the following period:
- Firstly, sick leave, convalescence; leave with the consent of the employer;
- Secondly, being held in custody or temporary detention;
- Thirdly, waiting for the results of competent authorities to investigate, verify and conclude on acts of theft, embezzlement, gambling, intentional injury, acts of causing serious damage, or threatening to cause special damage or serious differences in the property and interests of the employer;
- Fourthly, female employees in pregnancy, taking maternity leave, and raising children under 12 months of age.
Which court to file a lawsuit when fired illegally?
Point a, Clause 2, Article 219 of the Labor Code stipulates that labor disputes and labor-related disputes fall under the jurisdiction of the Court.
Point c, Clause 1, Article 35 of the 2015 Civil Procedure Code:
“35. Jurisdiction of People’s Courts of districts
c) Labor disputes prescribed in Article 32 of this Code.”
Point a, Clause 1, Article 39 of the 2015 Civil Procedure Code:
“1. Territorial jurisdiction of Courts to settle civil lawsuits shall be determined as follows:
a) The Courts of the localities where the defendants reside or work, applicable to defendants being individuals, or where the defendants are headquartered, applicable to defendants being agencies or organizations, shall have the jurisdiction to settle according to first-instance procedures for civil, marriage- and family-related, business, trade or labor disputes prescribed in Articles 26, 28, 30 and 32 of this Code;”
What to do when facing illegal dismissal?
In case the employee thinks that the dismissal of the employer is unreasonable and illegal:
Method 1: Complaint about dismissal decision
- First complaint: To the employer requesting to cancel the dismissal decision.
- Second complaint: Go to the Chief Inspector of the Department of Labor, War Invalids and Social Affairs, where the company headquartered in case the first complaint not resolved or the employee does not agree with the settlement. (According to Decree 24/2018/ND-CP).
Option 2: Mediation through Labor Mediator, Labor Arbitration Council
With a dispute over dismissal discipline, the employee can use this method or not (Basis: Article 188 of the Labor Code 2019).
Method 3: File a Lawsuit in Court
The employee has the right to go directly to the district-level People’s Court where the enterprise’s head office located for disputes over labor discipline in the form of dismissal (Article 188 of the Labor Code 2019).
Method 4: Report to the police agency
Employees may make criminal denunciations to the investigating agency if the employer’s illegal dismissal shows signs of constituting the crime of forcing civil servants to resign or illegally dismissing employees as prescribed. (Article 162 of the Penal Code 2015).
In case the employer finds his/her dismissal illegal, he/she should correct it immediately. In case it cannot be overcome, the employer needs to cancel the dismissal decision and apologize and compensate the employee.
Legal service of LSX Legal Firm
LSX legal firm provides legal services to clients in various legal areas. To make your case convenient, LSX will perform:
- Legal advice related to new regulations;
- Representing in drafting and editing documents;
- We commit the papers to be valid, and legal for use in all cases;
- Represent to submit documents, receive results, and hand them over to customers.
With a team of experienced, reputable, and professional consultants; The firm is always ready to support and work with clients to solve legal difficulties.
Furthermore, using our service, you do not need to do the paperwork yourself; We guarantee to help you prepare documents effectively and legally.
Also, you will not have to waste time preparing the application, submitting application, or receiving results. At those stages, we will help you do it smoothly.
After all, LSX provides the service with the desire that customers can experience it the best way. Additionally, we guarantee the cost to be the most suitable and economical for customers.
Related articles
- Conditions for establishing specialized libraries in Vietnam
- Register business online in Vietnam
- How to register an individual business household in Vietnam?
Related questions
The following agencies, organizations and individuals have the competence to settle individual labor disputes:
Firstly, Labor mediators;
Secondly, Labor Arbitration Councils;
Lastly, The People’s Court.
None of the disputing parties shall take unilateral actions against the other party while the labor dispute is being settled by a competent authority or person within the time limit specified in the Labor Code.
Competent labor dispute settlement authorities and persons shall, within their mandates, have the rights to request the disputing parties, relevant organizations and individuals to provide documents and evidence; request verification; and invite witnesses and other relevant persons.
Contact LSX
Finally, hope this article is useful for you to answer the question about “Which court to file a lawsuit when fired illegally in Vietnam?”. If you need any further information, please contact LSX Law firm: +84846175333 or Email: [email protected]
Conclusion: So the above is Which court to file a lawsuit when fired illegally in Vietnam?. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
