CONSULTATION ON EMPLOYMENT CONTRACT TERMINATION

Matter in Brief:

CB Investment Joint Stock Company (hereinafter referred to as “CB”) requests legal advice from TAPHALAW regarding the termination of the employment contract with Mr. Nguyen Van A (CB’s Chief Accountant). CB alleges that Mr. A has been absent from work without a valid reason for six days within a month.

Client’s Request:

CB requests that TAPHALAW provide legal advice on the following: (i) Whether there is a legal basis for terminating the employment contract with Mr. A; (ii) The appropriate procedure for terminating the employment contract with Mr. A, if such a basis exists.

Attorney’s Work Performed:

TAPHALAW’s attorney has reviewed and requested that CB provide additional documents related to the labor relations between Mr. A and CB, including:

• On the part of Mr. A: The employment contract and any related addendums; documents and evidence demonstrating that Mr. A was absent from work without just cause (e.g., time sheets, pay slips).
• On the part of CB: Company regulations; Internal labor regulations; Performance evaluation policy; and any internal procedures or regulations related to the execution and performance of employment contracts. In addition, the attorney has discussed with CB the reasons why CB wishes to terminate Mr. A’s employment contract in order to assess the risks associated with such termination.

Upon reviewing the documents provided by CB, in addition to the Internal Labor Regulations, CB has not yet had any documents related to the implementation and handling of labor discipline; the internal procedures and regulations are quite rudimentary and do not comply with the law. However, CB still wishes to terminate the Employment Contract, which must be carried out despite the potential risks. Accordingly, TAPHALAW analyzes two options that the Company can implement, including: (i) Agreement to terminate the Employment Contract; and (ii) Dismissal for disciplinary reasons.

1. Regarding the termination of the employment contract by agreement:

The employment contract between CB and Mr. A can be terminated by mutual agreement (Clause 3, Article 34 of the 2019 Labor Code). CB needs to undertake the necessary steps to negotiate and agree with Mr. A on: (i) the termination date of the employment contract; (ii) the benefits to which Mr. A is entitled upon termination of the employment contract by agreement; (iii) Mr. A’s obligations to hand over documents, records, electronic data, and assets of CB that are under Mr. A’s management; and (iv) other obligations of both parties as prescribed by law.

However, in reality, Mr. A’s attitude while working at CB suggests that negotiations will not be smooth and may be prolonged, affecting the progress of work as well as the Company’s recruitment plan. TAPHALAW has advised CB not to choose this option but to proceed with the dismissal for disciplinary reasons.

2. Regarding the Disciplinary Action of Dismissal:

Based on the research and assessment of the case, pursuant to the Internal labor regulations of CB and Articles 124, 125 of the Labor Code, TAPHALAW determines that CB’s decision to impose disciplinary action of dismissal on Mr. A is justified. Based on this assessment, the attorney has developed a plan for disciplinary action of dismissal in accordance with the procedures prescribed by law for CB.

TAPHALAW has also advised on the regulations and solutions in the event that Mr. A sues against the dismissal decision or takes other actions that may adversely affect the company.

Consultation Outcome:

CB has proceeded with disciplinary action of dismissal to Mr. A due to his conduct and work attitude, which, although not causing significant damage, could not be addressed through negotiation. Subsequently, CB has requested TAPHALAW to continue providing legal advice on: (i) developing and issuing a performance evaluation policy to serve as a basis for assessing the performance of employees within the Company; and (ii) developing internal regulations and procedures related to employee disciplinary measures and compelling employees to compensate for damages caused to the Company, with the aim of mitigating legal risks during the Company’s operations.