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1) The first complainant worked at the factory since 16 March 2015 with a long term contract.
On 30 October 2019, she received a written notification stating that her contract would be terminated on 13 December 2019 by the factory management without any specific reason.
The HR officer informed verbally that she would be paid from 30 October to 13 December, therefore she would not need to go to work during that period.
The complainant called the Fair Wear helpline on 30 October and the complaint handler advised her to continue to work and contact the labour union for help.
On 6 November 2019, the complainant called the helpline and claimed that she would be dismissed from 7 November 2019 .
2) The second complainant worked at the factory from 3 April 2019 with a one-year-contract.
The complainant called the Fair Wear helpline on 7 November 2019 and complained that she had been dismissed from 7 November 2019. She also received a written notification stating that her contract would be terminated on 28 November 2019 without any specific reason and with the same conditions as for the first complainant.
According to the complainants, there was no meeting to verify the reason for being dismissed, although both mentioned having had a fight with one another outside of the factory. They both received a written dismissal notification from a technical staff. They could not meet any person, including trade union representatives, for appeal.
Both complainants claimed that their labour contracts were illegally unilaterally terminated by the factory and wanted the factory to compensate them in accordance with Article 42 of the Labour Code.
Both complainants sent to the complaint handler photos of the termination decision and the dismissal decision.
Article 38 of the Labour Code
Article 42 of the Labour Code
Article 123 of the Labour Code
Article 38. The right to unilaterally terminate the labour contract of the employer
1. The employer is entitled to unilaterally terminate the labour contract in the following cases:
a) The employee regularly fails to complete the works according to the labour contract;
b) The employee suffering from sickness or accidents cannot recover after 12 consecutive months of treatment for labour contracts without fixed term, after 06 months for employees working under fixed-term labour contracts, or over one half of the contract term for employees working under casual labour contract or regular labour contract with term under 12 months
When the employee recovers, he/she may be considered to conclude the new contract.
c) The employer have to reduce the production and vacancies after taking all measures to overcome the consequences from natural disasters, fire or other force majeure;
d) The employee fails to be present at the workplace after the duration prescribed in Article 33 of this Code.
2. When unilaterally terminating the labour contract, the employer must notify the employee:
a) At least 45 days for labour contracts without fixed term;
a) At least 30 days for fixed-term labour contracts;
c) At least 30 working days for the case prescribed in Point b Clause 1 this Article and for casual labour contracts or regular labour contracts with term under 12 months.
Article 42. Obligations of the employer when illegally unilaterally terminating the labour contract
1. Re-employing the employee under the concluded labour contract and pay the salary, social insurance, medical insurance for the days the employee is banned from working plus the salary of at least 02 months under the labour contract.
2. In case the employee does not wish to continue working, the employer must give the severance pay as prescribed in Article 48 of this Code apart from the compensation prescribed in Clause 1 this Article.
3. In case the employer does not wish to re-employ the employee and the employee agrees, both parties shall reach the agreement on the extra compensation equal to the salary of at least 02 months under the labour contract apart from the compensation prescribed in Clause 1 this Article and the severance pay as prescribed in Article 48 of this Code.
4. If no vacancy for the position in the labour contract is available but the employee still wishes to continue working, both parties must negotiate to amend and supplement the labour contract apart from the compensation prescribed in Clause 1 this Article.
5. For violations of the advance notice time, the employee must be paid a compensation equivalent to the his/her salary of the unnoticed days.
Article 123. Principles and procedures of labour discipline
1. The labour discipline is regulated as follows:
a) The employer must prove the employee’s fault;
b) There must be the participation of the representative organisation of the labour collective at the grassroots level.
c) The employee must be present and has the right to defend himself, request a lawyer or someone to defend. In case of a person under age 18, there must be the participation of parents or the legal representative;
d) The labour discipline must be made in writing.
2. There is no permission to apply various forms of labour discipline for a violation of labour discipline.
3. When an employee at the same time has many acts of violation of the labour discipline, only the highest form of discipline shall apply corresponding to the most serious act of violation.
4. There is no permission for the labour discipline for the employee in the following time
a) Taking leave due to sickness, in convalescence and work leave with the permission of the employer;
b) Being in custody or detention;
c) Awaiting the results of the competent authority to investigate, verify and conclude for the acts of violations prescribed in Clause 1, Article 126 of this Code;
d) The female employee is pregnant and takes maternity leave; the employee nourishes her child under 12 months old.
5. No labour discipline for the employee violating the labour discipline while suffering from the mental illness or another disease that causes the loss of consciousness ability or the loss of his behaviour control.
The member brands informed the factory about the case.
The factory acknowledged the facts and explained that on 19 October 2019, the two workers had a conflict at work and led to a fight in front of the company gate that afternoon.
After that, the management team called both workers to the meeting room, including representatives of the Board of Directors, Trade union president, team leaders and technical manager, and asked them to explain the cause of the fight and the happenings. They both said the same thing and don't realise their mistakes, they said because the opponent challenged one another they asked an outsider to come and beat the other.
Realising that this had violated Paragraph 5, Article 3 of Company Policy, affecting the psychology of other workers, The Board of Director decided to fire them. When the HR Department sent a dismissal decision to them, both workers did not agree to sign.
The factory shared the company's policy, the disciplinary and meeting minutes as well as the dismissal decision documents with the member brands.
The members asked for more details about the fight and the dismissal decision and the factory provided answers. The factory said they want to avoid violent behaviours and that the dismissals are in line with the labour law.
A mediation meeting took place at the factory on 10 January 2020. Fair Wear complaints handler, both complainants and representatives of management and trade union attended the meeting.
The factory offered a two-month salary compensation to both workers. However, both workers claim 6 month-salary compensation following the local law for "illegal dismissal".
Since the compensation could not be agreed on, the following points were included and agreed upon:
- The factory should revise the policies and procedures on discipline and strictly follow/implement the new disciplinary policies and procedures;
- The factory will contact the local authorities to get more explanation about the relevant legal regulations/requirements as soon as possible and then inform the relevant parties of their decision
- The factory will resolve these claims according to the local law requirements.
On 12 February, both complainants confirmed that they had received the compensation and had no further complaint.
On 18 February, the factory management sent the compensation documentation, which included:
1. The signed agreement which stated: not reinstating the employee and compensation consist of the wage, social insurance, health insurance, and severance allowance (if any) for the period during which the complainant was not able to work (from 7 November 2019 to 7 February 2020), and the salary of 2 months, and the extra compensation equal to the salary of 2 months.
2. The payment sheet noted the factory paid a total of 69,964,820 VND to both complainants.
Both workers are thankful to Fair Wear, Fair Wear's members and the factory management for resolving their complaint. They said that the result is better than their expectation.
The complaint was resolved thanks to the member brands, who agreed to financially support the organisation of a remediation meeting, and to the openness of the factory to host the meeting with the complainants. The complaint was resolved according to the labour code.