HRM 427:

Employment Law
Lecturer: Ms Do Thi Kim Hau

Q3 2020-2021

Role Play Assessment

Group Triple:
Pham Minh Hieu
Le Thi Dieu Linh
Nguyen Hoang Thinh

I. THE CASE SUMARY:

In 2018, Ms Le Thi N sues her company for “Pay dispute and social insurance dispute after
contract termination” in which in stead of paying stoppage salary equal to the agreed salary
on the labor contract, the company paid stoppage salary equal to the minimum regional wage
(3,500,000 VND in 2016 and 3,750,000 VND in 2017). She asked the company to pay the
salary difference of 2016 as VND 1,612,000 and VND 6,927,000 in 2017. In the first instance
file, she also required Company H to complete procedures and documents for Ms. N to be
recognized by the Social Insurance Agency for the period of participating in social insurance
from November 1991 to December 1994. However, at the first instance trial, the Court
did not accept the lawsuit request of Ms. Le Thi N against Company H about "Pay dispute
and social insurance dispute after contract termination. In addition, the court also declared the
court costs and the right of appeal of the litigants according to the law. Ms N did not accept
this given sentence and send the appellate file to the Court. At the appellate trial, the Court
studied and analyzed some evidence and finally accepted the lawsuit claim of Ms. Le Thi N
about the salary dispute to stop working. Forcing Company H to pay Ms. Le Thi N 8,539,000
VND (Eight million five hundred and thirty-nine thousand VND) salary for the year 2016 and
2017, but still did not accept the lawsuit claim of Ms. Le Thi N about the "dispute on social
insurance" with Company H.

II. THE ROLE PLAY’S SCRIPT:

1. Opening procedure:
Court Clerk: People in the courtroom, please stand up. Invite the judge into the courtroom.
On behalf of the jury, I announce the opening of the trial. Everyone in the courtroom please
sit down.
Judge: The involved parties stand in place to listen to the jury announce the decision to bring
the case to trial.
Social Republic of Vietnam
Independence freedom happiness
The decision to bring the case to trial
People's Court of Dong Nai province
Pursuant to Articles 41, 179 and 195 of the Civil Code, after studying the appellate file of the
labor case in which accepted No. 21/2019/TLPT-LD on January 25, 2019.
Decision:
1. The first-instance labor judgment No. 31/2018/LD-ST on November 12, 2018 of the
People's Court of Bien Hoa city, Dong Nai province was appealed.
Decide to bring the case to appellate trial No. 67/2019/QD-PT dated on November 1, 2019 on
the labor case about “Pay dispute and social insurance dispute after contract termination”
+ The plaintiff: Ms. Le Thi N, born in 1975.
Address: No. F, neighborhood M, ward A, city B, Dong Nai province.
The authorized representative: Ms. Nguyen Thi Huyen T, born in 1983 (authorization letter
dated March 29, 2018).
Address: No. X, street H, ward H, city B, Dong Nai province.

+ Defendant: H Joint Stock Company.

Address: D Street, T Quarter, L Ward, City B, Dong Nai Province
The authorized representative: Ms. Nguyen Thi A, born in 1968 (authorization letter dated on
19/3/2018).
Address: No. F, group H, quarter G, ward B, city B, Dong Nai province.

Court opening time: 2h30 p.m, November 19, 2019

Location of trial opening: at the headquarters of the People's Court of Bien Hoa city
The case was heard in public.

2. Procedure-conducting persons:
Judge - Presiding judge: Ms. Phan Thi Thu Huong
Judges: Mr. Tran Vinh Yen and Mr. Pham Thanh Duong
Court Clerk: Ms. Tran Thi My Thuan – Court Clerk, People's Court of Dong Nai Province.
People's Court of Dong Nai Province, Judge Phan Thi Thu Huong signed.

All the parties please sit down.

(Back to 1 year ago (12/11/2018) at the first instance trial)

2. Asking section
Judge: On behalf of the trial panel, I declare the end of the procedure and move on to the
interrogation at the trial.
Invite the plaintiff's representative to present the lawsuit claims and present the grounds to
prove that the claim is grounded and lawful.
Plaintiff representative: Ms. Le Thi N was hired by the Company H in November 1991.
There was no labor contract between Ms. N and Company H. In May 1995, Company H
signed a definite-term labor contract of 12 months (03 times) with Ms. N. In 2004, Company
H signed labor contract with indefinite term, the assigned job is a worker sorting and
processing tobacco. In January 2016, Company H re-signed an indefinite-term contract again.
Current salary is 6,120,000 VND/month.

From July 2016 to December 2016, the Company arranged for Ms. N to stop working for a
total of 16 days. From January 2017 to September 2017, stop working for 76 days. A total of
92 days. Company H pays the stoppage salary equal to the regional minimum wage
prescribed by the State for each specific year, which is 3,500,000 VND in 2016 and
3,750,000 VND in 2017.

The salary agreed upon in the labor contract dated January 1, 2016 between Company H and
Ms. N is 6,120,000VND/month, realizing that Company H's termination salary for Ms. N is
equal to the regional minimum wage set by the Government State regulations, without
reaching agreement with Ms. N, are not in accordance with the law. Now, Ms. N sues to ask
the Company to pay the salary difference of 2016 as VND 1,612,000 and VND 6,927,000 in
2017 for Ms. N. At the same time, Ms. N requested the Company to pay social insurance
from November 1991 to the end of May 1995 by 51,163,000 VND for Mrs. N.

My plaintiff asked to make some changes in the first instance file. Ms N requested the Court
to force Company H to complete procedures and documents for Ms. N to be recognized by
the Social Insurance Agency for the period of participating in social insurance from
November 1991 to December 1994. For the period from January 1, 1995 to the end of May,
1995, which is 05 months, Company H requests that Company H collect social insurance at
the rate of: 05 months x 1.35 x 20% x 130,000 VND = 175,500 VND

Judge: Le Thi N., please stand up, did you hear the representative present about the lawsuit
claims and give the grounds to prove that lawsuit claim, do you have any additional
comments?
Plaintiff: I have no comments.
Judge: Please sit down.
Judge: I would like to invite at-law representative of company H to present the defendant's
views on the plaintiff's claim
At-law Representative:
+ Regarding the request for salary of the time Ms. N stopped work in the company: The
number of days Ms. N stopped working in 2016, 2017 The Company agreed as stated by the
plaintiff. Due to the negative impact of the market and Vietnam participating in the
Framework Convention on Tobacco Control (FCTC), the company must face a lot of
economic difficulties and the company must narrow down the production scale, and annual
sales decreased. According to the collective labor agreement of the Company issued on April
26, 2016, Regulation on distribution of salaries and bonuses of the company, Decree No.
49/2013/ND-CP dated May 14, 2013 of the government on detailed regulations of salary
implementation, the company has paid stoppage pay to employees in 2016 with a salary of
VND 3,500,000/month, and in 2017 with a salary of VND 3,750,000/month. The company
determined that paying this amount of salary was legal with the law, so the Company did not
agree with Ms. N's request to sue.

+ Regarding the lawsuit claim of Ms. N related to the company not paying for the social
insurance. The first period is November/1991 to May/1995.The job was as a tobacco sorting
worker. Ms. N works seasonally, every time she had a job, the company contacts Ms. N to
work for about 2 to 3 months, then she had a layoff. Therefore, from November 1991 to May
1995, there was no labor contract between Ms. N and the Company. Due to the seasonal
nature of the work, the Company did not have a salary sheet when paying the salary, but the
company only paid Ms. N based on the actual seasonal working time. Since 2007, in order to
maintain the number of employees, the Company voluntarily requested Dong Nai Social
Insurance for the Company to pay arrears in the insurance regime for employees in the period
from 1989 to 2004. However, because the Company could not provide documents and
documents proving the labor relationship, labor contract, salary as the basis for paying social
insurance, it was not possible to make the payment of insurance supplement for employees.
The effort to pay additional insurance for employees had been done by the Company for
more than 5 years until 2011, even though the Company had sent an Official Letter to the
Ministry of Labor, War Invalids and Social Affairs and Vietnam Social Insurance. to request
support to create conditions for the Company to pay social insurance premiums for
employees, but the Company still could not do so because it could not provide documents,
contracts, and payroll proving the employment relationship. The Company determined that
this was a voluntary payment of social insurance for its employees, not a case where the
Company was required or must pay social insurance because she is the seasonal worker.
In this document of the Company, the Company also affirmed very clearly that these cases
(including Ms. N) are all seasonal workers, if the company has a new job they wouldsl be
called, if there was no job, they will announce to leave. According to the law from 1998 to
2001, seasonal workers were not required to pay social insurance Therefore, the Company
did not agree to Ms. N's request for social insurance.

Judge: I would like to invite an authorized representative of company H, as the

representative of company H, do you have any other comments?
Defendant Representative: No. I don’t
Judge: Please sit down.

3. Argument and response

Judge: After listening to the two parties' presentations, the jury found that the two parties
still could not reach agreement on the decision of the first-instance judgment No.
31/2018/LD-ST dated on 12/11/2018 about “Pay dispute and social insurance dispute after
contract termination”, so the jury will ask to clarify some of the following issues. I want to
invite Ms. N.
Judge: Do you work at company H, do you remember when you worked here? What was
your main task when you were working here?
Plaintiff: Yes, I work for company H. I started working at the company from November of
1991. My main job is sorting and processing tobacco.
Judge: Please sit down. Now, I want to invite the representative of company H. Is what Ms.
N said true?
Company H’s representative (defendant’s representative): All of the thing that Ms. N
says is correct, however from November/1991 to May /1995, the company and Ms.N does
not sign into any labour contracts

Judge: why didn't you sign a contract with her from November 1991 to May 1995.
Company H’s representative: At that time Ms.N just worked for the company as the
seasonal worker, when the company needed workers to work, we would call Ms N to work
for a short period of time and pay money based on the products and working time. There was
no employment contract between the company and Ms.N

Judge: Ms N. please stand up. At that time, did you ask for signing the employment contract?
Plaintiff: No. At that time I did not sign any labor contract with company H. I was just a
person working to earn money. I didn’t care about that procedure. Besides, at that time, labor
contracts were not as important as they are now..

Judge: As you mentioned you did not care about the procedure, why did you request
company H to pay social insurance for you?
Plaintiff: : I think I worked hard for company H, so I deserve to be paid social insurance to
protect my health.
Judge: Thank you, please sit down. I would like to invite the representative of company H to
stand up.
Judge: Has the company ever implemented the process of paying social insurance for
workers?
Company H’s representative: In 2007 the company even invited the social insurance
agency of Dong nai province come to our company to advice and make the process to give
the social insurance for all of the employees in the company, but the problem is the company
cannot provide enough legal documents such as labor contract, salary document of document
related to labor relationship. So the company could not pay social insurance for Ms.N.

Judge: I want to invite a representative of the social insurance agency of Dong Nai province.
Have you ever been contacted by the company to process the payment of social insurance
contributions for workers?
Social insurance representative: I was invited, but to make payment of social insurance,
there are a lot of related documents.
Pursuant to Decision No. 595/QD-BHXH dated April 14, 2017 of the General Director of
Vietnam Social Insurance, promulgating the process of collecting social insurance, health
insurance, unemployment insurance, and accident insurance labor accidents, occupational
diseases, management of social insurance books, health insurance cards.
- For the period from November 1991 to December 31, 1994 (03 years and 02
months): At Item a, Point 1.1, Clause 1, Appendix 01 promulgated together with the
Decision according to 595/QD-BHXH stipulating the type of papers as a basis for
granting, recording and adjusting social insurance books in case the employee has
worked since before 1995, the dossier includes: Original resume and additional background
(if any) of the employee, decision on admission, labor contract, and other relevant papers.
such as the decision to raise the salary level, the decision to transfer, the decision to change
jobs, the resignation letter...
- For the period of January 1995 (01 month): In Appendix 02 issued together with
Decision 595/QD-BHXH stipulating the types of papers used as a basis for making a list
of arrears of social insurance, including: For employees Working in a state-owned
enterprise:
+ If the employee is an officer (including manager enterprises), the papers and dossiers
identify the subjects as: Decision on appointment (business manager), recruitment, salary
arrangement (professional officer, executive officer and worker).
+ If the employee works under the labor contract, the papers and records. The subject is
defined as: Labor contract of 03 months or more.
- Salary payment table corresponding to arrears time.
- Other types: Explanatory documents, explanations..., or documents related to the work
product contract, job contract, ...

In the case of Ms. N, there are not enough papers to track the payment of social insurance
premiums for Ms. N.
Judge: After listening to the arguments from the parties, did Ms. N add any comments to the
counter-argument?
Plaintiff: I have no comments.
Judge: Mrs. T, do you have any other comments to add to this debate?
Defendant’s representative: No
Judge: Please sit down. If no one has any ideas to argue and answer. On behalf of the jury, I
declare the end of the argument and invite the jury to the deliberation room.

(The Jugde gave the final sentence for the first instrance trial)
*Sentence from the Court for the first instance trial:
-did not accept the lawsuit request of Ms. Le Thi N against Company H about "Pay dispute
and social insurance dispute after contract termination".
In addition, the court also declared the court costs and the right of appeal of the litigants
according to the law*

(Back to the appellate trial)

Court Clerk: today, there is only Ms T at the court, Ms A and Ms H had the application form
for absence.
Judge: Ms T, do you want to change anything from the appellate file?
Plaintiff’s representative: I have no comments.

Judge: I would like to invite the Procuracy to speak.

The Procuracy: Regarding the observance of the procedural law, from the time the case is
accepted to the time of trial at the court hearing, the presiding judge and the Trial Panel shall
strictly comply with the provisions of law. The involved parties participating in the court
hearing must comply with the prescribed procedures, rights and obligations.
Regarding the settlement of the case: It is proposed to accept a part of Ms. N's appeal and
partially amend the first-instance judgment.
Accepting the lawsuit request of Ms. N about the salary dispute to stop working.
Forcing Company H to pay Ms. Le Thi N 8,539,000 VND in salary for the year 2016 and
2017.

Does not accept the lawsuit request of Ms. Le Thi N about requesting Company H to set up a
procedure for the Social Insurance agency of Dong Nai province to recognize the time of
participating in social insurance from November/1991 to December 1994 and post-paid social
insurance for Ms. N for the period from January 1, 1995 to the end of May, 1995 with a fee
of 05 months x 1.35 x 130,000 x 20% = 175,500 VND.

Judge: If no one has any ideas to argue and answer,

On behalf of the jury, I declare the end of the argument and invite the jury to the deliberation
room.
4. Deliberation

A few hours later...

5. Pronouncement of a judgment
Court Clerk: everyone in the courtroom please stand up, I will invite the jury to pronounce
the sentence

Judge: On behalf of the jury, I pass a sentence.

In the name of Social Republic Of Vietnam, People's Court of Dong Nai Province, about the
pay dispute termination of work and social insurance on 19/11/2019. The judge perceives

After studying the documents and evidence in the case file that were examined at the court
hearing and the results of the litigation at the trial, the Trial Panel concluded:

[1] Regarding the proceedings: Ms. Le Thi N's appeal was made within the statutory time
limit, paying court fee advances in accordance with regulations should be considered
according to appellate procedures.

[2] Regarding the content of Ms. Le Thi N's appeal:

[2.1]. For an appeal of stoppage pay: Ms. N and the Company agreed on the number of days
off work is 92 days, specifically 16 days in 2016 and 76 days in 2017; Ms. N requested the
Company to pay the stoppage pay of 2016 and 2017 which was 92 days, the amount was
8,539,000 VND. According to Ms. N, the company's fault for stopping work, so the company
has to pay full salary, and according to Company H, it is determined that the job stoppage is
due to economic reasons. Due to the impact of the market and since Vietnam ratified the
Framework Convention on Tobacco Control (FCTC) of the World Health Organization,
Company H had to terminate many of its branches, reduce its production. This has affected
the production and business activities of the Company. According to documents and evidence
that the Court of Appeal additionally collected and provided by the Inspector of the Ministry
of Labor, Invalids and Social Affairs, the conclusion of the Inspector of the Ministry of
Labor, War Invalids and Social Affairs recommended that the Company H makes an
agreement with the employee on the salary for stoppage. Therefore, despite economic
difficulties, company H still has to make an agreement with the employee on the salary to
stop working, but the company's failure to agree with the employee is contrary to the
provisions of Clause 3, Article 98 of Labor Code 2012. Thus, this is a new circumstance at
the appellate level, so it is necessary to amend the first-instance judgment on salary for
termination of work, forcing Company H to pay Ms. N the outstanding salary for termination
of work in the year. 2016 is 16 days and 2017 is 76 days, the total amount is 8,539,000 VND
[2.2] Regarding the social insurance appeal: Ms. N said that she was continuously employed
by the Company from November 1991 to May 1995, but according to the Company, Ms. N
worked on a seasonal contract. According to the provisions of Decision No. 595/QD-BHXH
dated on April 14, 2017 of the General Director of Vietnam Social Insurance, in order to
make a document for social insurance payment, it is required to have a labour contract, valid
documents related issues such as: Decision to raise salary level, labour contract of 03 months
or more, payroll.... However, in the process of settling the case, the authorized representative
of the plaintiff and the defendant admitted that from the time Ms. N started working from
November 1991 to May 1995 between Ms. N and the Company, she did not sign any labour
contract, the two parties could not provide a salary payment for Ms.N and documents related
to the contract of work products. The fact that Ms. N based on the list of employees can show
the number of years and months working at Company H and send it to Dong Nai Provincial
Social Insurance and Vietnam Social Insurance for her opinion. The idea that the social
insurance agency should post-paid social insurance for employees in 2007, 2008 is
unfounded. At that level, Vietnam Social Security issued Document No.4175 dated
November 7, 2019 determining the case where the parties failed to provide salaries,
professional titles or contents in the labour contract. According to the provisions of point c,
clause 1, section three of the Circular No. 09/ dated on April 26, 1996 of the Ministry of
Labour, Invalids and Social Affairs, there is no basis for calculating the arrears to enjoy the
prescribed social insurance regime. Therefore, the Court of First Instance did not accept Ms.
N request for the preparation of procedures, recognition of the period of participation in
social insurance of Ms. N from November 1991 to December 1994 and arrears payment of
insurance premiums. The society gave Ms.N a period from January 1, 1995 to the end of
May, 1995 with a fee of 175,500 VND, which was valid,so did not accept Ms. N’s appeal on
this part.

(On behalf of the judge, I will continue to read the sentence)

DECISION
Judge: Pursuant to Clause 2, Article 308, Article 309 of the Civil Procedure Code, partially
accepting Ms. Le Thi N's appeal, partially amending the first-instance labor judgment No.
30/2018/ dated on November 12 2018 of the People's Court of Bien Hoa city, Dong Nai
province.
Pursuant to Articles 27, 28, 140 and 141 of the Labor Code 1994; Article 98, Article 202 of
the Labor Code 2012; Circular No. 09 dated April 26, 1996 of the Ministry of Labor, Invalids
and Social Affairs; Decision No. 595 dated April 14, 2017 of the General Director of
Vietnam Social Insurance; Resolution No. 326/2016/ dated December 30, 2016 of the
National Assembly Standing Committee providing for the collection, exemption, reduction,
collection, payment, management and use of court fees and charges.

VERDICT
Judge:
1. Accepting the lawsuit claim of Ms. Le Thi N about the salary dispute to stop working.
Forcing Company H to pay Ms. Le Thi N 8,539,000 VND (Eight million five hundred and
thirty nine thousand VND) salary for the year 2016 and 2017.
2. Not accepting the lawsuit claim of Ms. Le Thi N about the "dispute on social insurance"
with Company H.
3. Regarding legal fees: Company H must bear 300,000 VND (Three hundred thousand
VND) first-instance labor court fees. Ms. Le Thi N was exempted from first-instance and
appellate labor costs.
From the date the judgment creditor files a written request for judgment enforcement, if the
judgment debtor has not yet paid the aforesaid amount, the judgment debtor shall still have to
pay interest at the interest rate agreed upon by the parties but must not exceed the interest rate
specified in Clause 1, Article 468 (four hundred and sixty eight) of the Civil Code; if there is
no agreement, the provisions of Clause 2, Article 468(four hundred and sixty eight) of the
Civil Code shall apply.
In case a decision is enforced according to the provisions of Article 2 of the Law on Civil
Judgment Execution, the civil judgment creditor and the civil judgment debtor have the right
to agree on judgment enforcement, the right to request judgment enforcement, voluntarily
execute judgments or are forced to execute judgments according to the provisions of Articles
6, 7, 7a and 9 of the Law on Civil Judgment Execution; The statute of limitations for
judgment enforcement shall comply with the provisions of Article 30 of the Law on Civil
Judgment Execution. The appellate judgment takes legal effect from the date of its
pronouncement.
On behalf of JUDGE'S COMMITTEE - COURT OFFICER
Ms. Phan Thi Thu Huong signed.