TRÌNH TỰ THỦ TỤC YÊU CẦU NGƯỜI LAO ĐỘNG BỒI THƯỜNG THIỆT HẠI / PROCEDURES FOR REQUESTING EMPLOYEE TO

Situation: Recently, an employee had an act that caused damage to our Company’s property. I would like to inquire about the procedures for requesting that the employee compensate for the damage caused to the company? 

Response: Thanks for trusting and sending a question to FDVN Law Firm (“FDVN”). FDVN would like to provide the following information in response: 

According to clause 1 Article 129 of the Labor Code 2019, an employee who causes damage to equipment or otherwise damages the employer’s assets shall have to pay compensation by labor laws or the employer’s internal labor regulations. 

In case the damage caused by an employee is not serious, not deliberate and is worth less than 10 months’ region-based minimum wage announced by the Government, the employee shall have to pay a compensation of not more than his/her 03 months’ salary, which shall be monthly deducted from his/her salary which shall not exceed 30% of the net monthly salary of the employee, after the payment of compulsory social insurance, health insurance, unemployment insurance premiums and personal income tax. 

An employee who loses the employer’s equipment or assets, or consumes the materials beyond the set limits shall pay a compensation for damage in full or in part at the market price or as stipulated in the internal labor regulations or the responsibility contract (if any). In case this is caused by a natural disaster, fire, war, major epidemic, calamity, or another force majeure event which is unforeseeable and insurmountable, and all necessary measures and possibilities for avoidance have been taken, the compensation shall not required. 

Compensation procedures are guided under Article 71 of Decree No. 145/2020/ND-CP elaboration of some articles of the Labor Code on working conditions and labor relations as follows: 

Step 1: Requesting the employee to prepare a written report on the incident 

In cases where an employee causes damages or loses an asset assigned by the employer or otherwise causes damage to the employer’s assets or exceeds the consumption limit, the employer will request the employee to prepare a written report on the incident. 

Step 2: Conducting a compensation hearing 

Within the time limit for claiming compensation, the employer shall conduct a compensation hearing, specifically: 

At least 05 working days before the compensation hearing is held, the employer shall notify the participants, including: the representative organization of employees to which the employee is a member, the employee must compensate (if the employee is under 15 years of age, a legal representative must be present, request a lawyer or the representative organization of employees (if any), the valuer (if any); make sure these participants receive the notification before the hearing takes place. The notification shall specify the hearing time and location, full name of the employee that causes the damage and the damage caused by him/her. 

Upon receipt of the employer’s notification, the mandatory participants mentioned above shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision. 

The employer shall conduct the compensation hearing at the time and location aforementioned. In case any of the mandatory participants mentioned in Point a of this Clause does not confirm his/her participation or is not present, the employer shall still conduct the hearing.

Minutes of the compensation hearing shall be taken and ratified before the end of the hearing, the minutes shall bear the signatures of the participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes. 

Step 3: Issuing the compensation decision. 

The compensation decision shall be issued within the time limit for claiming compensation; specify the damage caused and the causes of damage; the compensation level; deadline and method of compensation payment. The decision shall be sent to the participants mentioned in Step 2 of this proceeding. 

Note for time limits for claiming compensation:

According to Article 72 of Decree No. 145/2020/ND-CP, The time limit for claiming compensation is 06 months from the day on which the employee causes damages or loses an asset of the employer or otherwise causes damage to the employer’s assets or exceeds the consumption limit. Compensation shall not be claimed against employees during the periods in the cases as below: 

Taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent; 

Being held under temporary custody or detention; 

Waiting for verification and conclusion of the competent agency for acts of theft, embezzlement, gambling, deliberate infliction of injuiries or uses drugs at the workplace; having acts of disclosing technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations; 

The employee is pregnant, on maternal leave or raising a child under 12 months of age. 

At the end of the period specified above, if the time limit for claiming compensation has not expired or the remaining time is shorter than 60 days, the time limit may be extended for up to 60 more days from the end of the period aforementioned. 

Above is the legal consultant of FDVN regarding Your inquiries based on the research of legal regulations. We hope those opinions shall be helpful for You.