NOTES WHEN UNILATERALLY TERMINATE THE LABOR CONTRACT OF AN EMPLOYEE WHO IS A TRADE UNION OFFICIAL

Legal case: Dear Lawyer, one of my company's employees is the deputy team leader of the company's trade union. Recently, this person has violated the company's rules regarding leave without permission so our company has decided to unilaterally terminate the labor contract with this employee. However, I have heard that the procedure for unilaterally terminating a labor contract with a trade union official is slightly different from that of ordinary employees. So, what are the differences that we need to pay attention to when unilaterally terminating the labor contract of an employee who is a trade union official?

Reply:

Thank you for your trust and for submitting your inquiry to FDVN Law Firm ("FDVN"). After reviewing the relevant legal provisions, FDVN would like to provide the following information:

Pursuant to Clause 5 of Guidance 03/HD-TLĐ 2020, a trade union official includes:

- Trade union team leader, deputy trade union team leader, member of the executive board of the trade union at all levels. 

- Member of the trade union inspection committee at all levels, member of the mass organizations of the trade union at all levels through election or appointment by the competent trade union authority.

- Cadres and civil servants working in specialized departments within the organizational apparatus of trade unions at all levels.

Therefore, the deputy trade union team leader is considered a trade union official.

Pursuant to Clause 3, Article 177 of the Labor Code 2019 governing the employer’s obligations towards the labor union at the establishment, when unilaterally terminating the labor contract with a trade union official, your company needs to pay attention to the following:

- It is mandatory to have a written agreement with the labor union leadership at the workplace.

- In case of a disagreement, both parties must report to the labor department of the provincial People's Committee.

- After 30 days from the date of notification to the labor department of the provincial People's Committee, the employer may make a decision.

If either the employee or the leadership of the labor union at the establishment disagrees with the employer's decision, they have the right to request labor dispute resolution in accordance with the prescribed procedures.

The above is FDVN's advisory opinion regarding your inquiry, based on our research of relevant legal provisions. We hope this advice is helpful to you.

According to Thao Nguyen, a lawyer at FDVN

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