On October 1, 2023, the Chief Justice of the Supreme People's Court issued Decision No. 364/QD-CA on the publication of 07 new case laws applicable in many fields. Among these 07 new case laws, ATA Legal Services would like to choose to send to you the basic content of Case Law No. 70 on termination of labor contracts for employees who are non-full-time trade union officials ("Case Law 70"). As follows:
Case Law 70 sets out the legal situation: The employee ("Employee") and the employer ("Employer") enter into a definite-term employment contract. During the contract term, the employee is elected Chairman of the Executive Committee of the grassroots-level Trade Union but the candidacy and election are invalid. At the end of the contract term, the Employer issues a decision to terminate the labor contract with the Employee.
According to the provisions of the Labor Code and the Trade Union Law in effect at the time of the incident, the Employer must extend the signed labor contract to the end of the term for the Employee who is a member of the leadership board of the representative organization of the employee at the grassroots level who is in the term in which the labor contract expires.
However, in the case mentioned in Case Law 70, at the time the Provisional Trade Union Executive Committee conducts the General Meeting, the employee's labor contract is only valid for 01 month, but the Industrial Park Trade Union still includes the employee in the electoral list of the grassroots Trade Union Executive Committee is not in accordance with Instruction No. 398/HD-TLĐ of the Vietnam General Confederation of Labor Nam dated 28/03/2012: "Participants in the Executive Committee, in addition to meeting the criteria, must also meet the following conditions: on the re-election of the Executive Committee: Have enough working age to serve at least 1/2 term".
Therefore, Case Law 70 provides that the court must determine that it is correct for the employer to terminate the labor contract with the employee.
Principles of application of Case Law 70: the Employer has the right to terminate the labor contract (definite term) with the Employee who is a member of the leadership board of the representative organization of the employee at the grassroots level during the term of office if the following conditions are met:
1. The labor contract is entered into in accordance with the provisions of law;
2. The term of the labor contract has expired;
3. The election of an employee as a member of the leadership board of the representative organization of employees at the grassroots level is not in accordance with relevant laws and guidelines;
4. The Employer has notified the Employee in advance of the non-re-signing of the labor contract before the Employee is elected as the Chairman of the Executive Committee of the Trade Union.
Comment: