The Procedures For Settlement Of Individual Labor Disputes

Labor disputes settlement is the process by which state agencies have the authority to apply labor laws to resolve individual or collective labor disputes between parties in labor relations. The purpose of dispute settlement is to restore and ensure the legitimate rights and interests of employees and employers. For individual labor disputes, Articles 200, 201 and 202 of Labor Code 2012 provide statute of limitations, the jurisdiction and procedure of settlement as follows:

The jurisdiction of disputes resolution

Agencies and persons competent to settle individual labor disputes include: Labor conciliators and People’s Courts.

Statute of limitations for requesting settlement

The statute of limitations for requesting a labor conciliator to settle an individual labor dispute is 6 months, the statute of limitations for bringing an individual labor dispute to a court is 1 year counting from the date of discovering an act which is claimed by each disputing party to infringe its rights and legitimate interests.

Settlement of individual labor disputes by labor conciliators

Within 5 working days from the date of receiving a conciliation request, the labor conciliator shall complete the conciliation. Both disputing parties must be present at the conciliation meeting. The disputing parties may authorize their representatives to attend the conciliation meeting. The labor conciliator shall instruct the parties to negotiate.

• In case the two parties can reach an agreement, the labor conciliator shall prepare a minute of successful conciliation.
• In case the two parties cannot reach any agreement, the labor conciliator shall recommend a solution to the parties for consideration. In case the two parties cannot reach any agreement, the labor conciliator shall recommend a solution to the parties for consideration. In case the two parties agree with the recommended solution, the labor conciliator shall prepare a minute of successful conciliation.
• In case the two parties do not agree with the recommended solution or one of the disputing parties is absent without a plausible reason after having been duly summoned for two times, the labor conciliator shall prepare a minute of unsuccessful conciliation.

Note that the minute of conciliation must have the signatures of the present party and the labor conciliator. Copies of the minute of successful or unsuccessful conciliation must be sent to both disputing parties within 1 working day from the date the record is prepared.

Settlement of individual labor disputes by a court

Each party has the right to request the Court to settlement the dispute in case of unsuccessful conciliation or either party fails to comply with the agreements in the minutes of successful conciliation or the time limit for settlement is over as prescribed (5 days work) if the labor conciliator does not conduct conciliation.

Thus, conciliation is a mandatory procedure in the labor dispute settlement process, except in some cases where the law allows it not to pass conciliation procedures:

• Labor discipline in the form of dismissal or dispute over the case of unilateral termination of the labor contract.

• Compensation for damages, benefits upon termination of labor contracts.

• Between domestic employees and employers.

• Social insurance in accordance with the law on social insurance, health insurance in accordance with the law on health insurance.

• Compensation for damage between employees and enterprises, non-business units sending employees to work abroad under contracts.

New points in the Labor Code 2019

The Labor Code 2019 stipulates basically the same as the one on competence, statute of limitations, order and procedures for settling individual labor disputes just analyzed above. However, there are a few new points to mention according to the provisions of Articles 187, 188 and 190 of Labor Code 2019:

• Add a competent dispute settlement body, the Labor Arbitration Councils, along with the method of dispute settlement through the Labor Arbitration Councils: specifically, in case one of the parties does not perform the agreements in the minutes of successful conciliation; where it is not required to go through conciliation procedures; in case the prescribed conciliation period expires but the labor conciliator fails to conduct the conciliation or the conciliation fails, the disputing parties may choose to request the Labor Arbitration Councils or the Court to settle.

• The statute of limitations for requesting settlement: In addition to the case of requesting settlement of the Labor Arbitration Councils, the time limit to request a Labor Arbitration Councils to settle an individual labor dispute is 09 months from the date on which a party discovers the act of infringement of their lawful rights and interests. And if the requester is able to prove it because of a force majeure event, unfortunate event or other reasons as provided for by law, but cannot request it on time as prescribed in this Article, the time of the force majeure event such resistance, obstacles or reasons are not included in the statute of limitations for requesting settlement of individual labor disputes.

• Amend, supplement several cases of labor disputes that are not required through conciliation procedures, including disputes:

• Unemployment insurance according to the provisions of the law on employment, the insurance of occupational accidents and diseases in accordance with the law on occupational safety and sanitation.

• Compensation for damage between employees and enterprises, organizations sending employees abroad under the contract.

• Between the dispatching employee and the dispatching agency.

The above are the legal provisions of individual labor dispute settlement order. Readers can contact Lac Duy & Associates to receive timely advice and support with other information such as: unilateral labor contract termination disputes, labor discipline disputes, salary disputes, insurance disputes, job transfer disputes, dismissal disputes … or information about good labor consulting lawyers, salary consulting lawyers, insurance consulting lawyers…