Employees’ rights and interests constitute one of the fundamental regulations of labor law and are strongly protected through various mechanisms, including litigation when such rights are infringed. The following article shall provide an overview of the current regulations on initiating lawsuits related to employees’ rights and interests.

I. Current situation of lawsuits related to employees’ rights and interests

In recent years, the number of labor disputes initiated by employees before the courts has shown an increasing trend. Such lawsuits typically focus on issues such as unlawful unilateral termination of labor contracts, unpaid wages, social insurance, occupational accidents, occupational diseases, and discriminatory practices.

Such situations reflect the growing awareness of employees regarding their rights and their willingness to resort to legal measures to protect those rights.

II. Legal regulations on lawsuits related to employees’ rights and interests

1. Definition of lawsuits related to employees’ rights and interests

In practice, “lawsuits related to employees’ rights and interests” may be understood as cases where employees (or employee representative organizations) initiate legal proceedings before a competent authority to request the resolution of disputes arising in labor contracts or labor relations in general, when they believe that their lawful rights and interests have been infringed.

2. Grassroots conciliation prior to initiating lawsuits related to employees’ rights and interests

Pursuant to Clause 1, Article 188 of the Labor Code 2019, individual labor disputes must be resolved through conciliation conducted by a labor conciliator before being submitted to a Labor Arbitration Council or the Court, except for the following labor disputes which are not required to undergo conciliation procedures:

  • Disputes concerning labor disciplinary measures in the form of dismissal or unlawful unilateral termination of labor contracts;
  • Disputes concerning compensation for damages or allowances upon termination of labor contracts;
  • Disputes between domestic workers and employers;
  • Disputes concerning social insurance in accordance with social insurance law, health insurance in accordance with health insurance law, unemployment insurance in accordance with employment law, or occupational accident and disease insurance in accordance with occupational safety and health law;
  • Disputes concerning compensation for damages between employees and enterprises or organizations sending employees to work overseas under contracts;
  • Disputes between leased employees and labor-leasing employers.

Accordingly, for most individual labor disputes currently arising, grassroots conciliation is a mandatory step before employees may initiate lawsuits before the Court.

3. Employees’ rights when unlawfully dismissed in lawsuits related to employees’ rights and interests

When an employer unlawfully unilaterally terminates a labor contract, the employee may initiate a lawsuit to protect their rights and interests. Pursuant to Article 41 of the Labor Code 2019, the employer’s obligations in cases of unlawful unilateral termination of labor contracts are as follows:

  • Reinstating the employee to work under the concluded labor contract; paying wages and making social insurance, health insurance, and unemployment insurance contributions for the period during which the employee was not allowed to work; and to pay the employee an additional amount of at least two months’ wages under the labor contract.
  • After being reinstated, the employee must refund any severance allowance or job-loss allowance already received from the employer.
  • In cases where the previously agreed position or job is no longer available but the employee wishes to continue working, the parties shall negotiate to amend or supplement the labor contract.
  • In cases of violation of the notice period prescribed in Clause 2, Article 36 of the Labor Code, the employer must pay an amount equivalent to the wages under the labor contract for the days of insufficient notice.
  • In cases where the employee does not wish to continue working, in addition to the amounts payable under Clause 1 of this Article, the employer must pay a severance allowance in accordance with Article 46 of the Labor Code to terminate the labor contract.
  • In cases where the employer does not wish to reinstate the employee and the employee agrees, in addition to the amounts payable under Clause 1 of this Article and the severance allowance under Article 46 of the Labor Code, the parties shall agree on an additional compensation amount payable to the employee, which shall be at least equal to two months’ wages under the labor contract, in order to terminate the labor contract.

These provisions aim to ensure that employees receive adequate compensation for unlawful loss of employment.

III. Certain questions on lawsuits related to employees’ rights and interests

1. Conditions for unilateral termination of labor contracts in lawsuits related to employees’ rights and interests

An employer or employee wishing to unilaterally terminate a labor contract must satisfy the following basic conditions:

  • There must be lawful grounds for unilateral termination: Employees may unilaterally terminate labor contracts in cases prescribed in Article 35 of the Labor Code 2019; employers may unilaterally terminate labor contracts in cases prescribed in Article 36 of the Labor Code 2019.
  • Compliance with statutory notice period requirements.
  • For employers: Ensuring that the termination does not fall within cases in which unilateral termination is prohibited by law, as stipulated in Article 37 of the Labor Code 2019.

2. Employers’ right to dismiss employees in lawsuits related to employees’ rights and interests

Pursuant to Clause 1, Article 36 of the Labor Code 2019, employers have the right to unilaterally terminate labor contracts in the following cases:

  • The employee repeatedly fails to perform the work under the labor contract, as determined based on performance evaluation criteria stipulated in the employer’s internal regulations. Such evaluation regulations must be issued by the employer after consulting the employee representative organization at the grassroots level, where applicable;
  • The employee suffers illness or accident and has received treatment for 12 consecutive months in the case of indefinite-term labor contracts, or 6 consecutive months in the case of definite-term labor contracts with a term of 12 to 36 months, or more than half of the contract term in the case of definite-term labor contracts with a term of less than 12 months, while work capacity has not yet recovered;
  • Due to natural disasters, fires, dangerous epidemics, enemy sabotage, or relocation or downsizing of production or business at the request of competent state authorities, after the employer has taken all remedial measures but is still forced to reduce jobs;
  • The employee fails to be present at the workplace after the period prescribed in Article 31 of the Labor Code;
  • The employee reaches retirement age as prescribed in Article 169 of the Labor Code, unless otherwise agreed;
  • The employee abandons work without legitimate reasons for five consecutive working days or more;
  • The employee provides untruthful information as prescribed in Clause 2, Article 16 of the Labor Code when concluding the labor contract, thereby affecting recruitment.

In the above cases, the employer has the right to unilaterally terminate the labor contract and dismiss the employee.

3. Methods for claiming rights in lawsuits related to employees’ rights and interests

Employees may take the following steps to claim their rights when such rights are infringed in labor relations:

  • Preparing evidence dossiers, including labor contracts, payroll records, termination decisions, correspondence, and related documents;
  • Submitting a request for grassroots conciliation (where conciliation is mandatory);
  • Initiating a lawsuit before a competent People’s Court if conciliation fails.

The choice of method depends on the nature of the dispute and the employee’s objectives. However, understanding these steps enables employees to be more proactive in protecting their lawful rights and interests.

IV. Legal consulting services on lawsuits related to employees’ rights and interests

The above is NPLaw’s article on lawsuits related to employees’ rights and interests. With a team of experienced lawyers and legal professionals, NPLaw provides reputable and professional legal services, ensuring the best possible protection of clients’ lawful rights and interests. Should you require legal assistance, please contact NPLaw for consultation and support.