Subject legal reasoning and writing skills

MINISTRY OF JUSTICE HANOI LAW UNIVERSITY INDIVIDUAL ASSIGNMENT SUBJECT: LEGAL REASONING AND WRITING SKILLS FULL NAME NGUYỄN NHẬT QUANG STUDENT CODE 443026 CLASS A.BTTC35-2-21 (N01) Hanoi, 2022 QUESTION: Please choose one of the below two cases in the below links: https://anle.toaan.gov.vn/webcenter/portal/anle/chitietnguonanle? dDocName=TAND146 230 Question (5 pts) Please brief the fact of the case you choose in no more than six sentences Question (2 pts) Please identify the main legal issue in the case you choose, starting with the term “Whether ” Question (3 pts) Please draft a legal memo for your partner in which you answer the following question: • What is the law that governs Precedent No 01/2020/LD-PT dated July 1, 2020 by the Da Nang People’s Court? Please identify the written rule that governs the case as well as the interpretation of the court Your job is not only to quote the written rule, but also to extract the legal norm that such written rule carries and how the court interprets it ANSWER: Question 1: Status of the parties: Plaintiff: Mrs Nguyễn Lê Nam H - the employee Mr Nguyễn Quang H1 - the authorized representative Defendant: A Seafood Company Limited - the employer Mr J Goldman, General Director - the legal representative Mr Nguyễn Châu H2 - the authorized representative Fact: Plaintiff and Defendant signed an indefinite-term employment contract with the professional title of Production and Export Manager During the working period, Plaintiff signed with the General Director the Agreement on Remote Working Cooperation, allowing the employee to work remotely from France if any request from the company to move back to Vietnam will be notified 06 (six) months in advance based on the postmark After that, in February 2018, the company changed its legal representative also known as the General Director of the company and also decided to increase the salary of Plaintiff However, in April 2018, the new General Director sent an email requesting to stop working at the company since she failed to present continuously and regularly at the company to manage all production activities directly Plaintiff filed a lawsuit requesting the Court to force Defendant to accept the employee back to work; restore her job according to the labour contract and signed document, and pay her salary Defendant disagrees with the lawsuit claims of the plaintiff on the grounds that the claim has no legal basis, and only agrees to pay part of the salary requested by Plaintiff (At the first instance, the Court rejected the plaintiff’s petition, and then the plaintiff appealed and asked the appellate court to reconsider the plaintiff’s petition.) Question 2: Legal Issue:  Whether the Agreement on Remote Working Cooperation signed between Mrs H and Mr D Mark Fisk is an annex to the Labour Contract that is mandatory in the employment relationship?  Whether the plaintiff’s receipt of an email from the company with the subject “Termination of Employment and Resignation” is considered a unilateral decision to terminate the Labour Contract? Question 3: MEMORANDUM Recipient: Mr Le Nguyen Duy Hau Sender: Quang Nguyen Nhat Date: April 8th 2022 SUBJECT: YYMMDD – Mrs Nguyen Le Nam H case – Research on the law governing Precedent No 01/2020/LĐ-PT dated July 1st, 2020 by the Da Nang People’s Court Dear Mr Le Nguyen Duy Hau, You asked me to research the law governing Precedent No 01/2020/LĐ-PT on disputes over unilateral termination of Labour Contract dated July st, 2020 by the Da Nang People’s Court as well as identify the written rule that governs the case and explain the interpretation of the court This note sets out my legal research to the relevant clause to the Precedent This email summarizes my findings and opinions about this case A Seafood Company has been sued by Mrs H for unilateral termination of Labour Contract Once she signed with the former General Director the Agreement on Remote Working Cooperation, allowing the employee to work remotely in France In case the document related to working remotely were an annex to the Labour Contract, this Agreement would be valid However, after that agreement, the two parties signed two more annexes but there were no additional terms for the above Agreement, so it is not an annex to the labor contract and is not binding The first issue is whether the Agreement on Remote Working Cooperation signed between Mrs H and Mr D Mark Fisk is an annex to the Labour Contract that is mandatory in the employment relationship Due to her frequent absences at the company and the nature of her work Mr J Goldman, who is a new legal representative of Company A, sent an email with the content requesting Mrs H to terminate her work at the Company This email from Mr J Goldman to Mrs H is just a notice of the agreement to terminate the Labour Contract In particular, the compensation claim arising out of the dispute shall not be resolved As a result, the second issue in this case is whether the plaintiff’s receipt of an email from the company with the subject “Termination of Employment and Resignation” is considered a unilateral decision to terminate the Labour Contract? My detailed analysis is as follows: In terms of researching the law and the written rule, this case considers an employment relationship between the employee and the employer According to Article 1, the Labor Code regulates the rights, obligations, and responsibilities of employees and employers in labour relations Therefore, the main legal source in our case will be the Labor Code Therefore, the main legal source of Precedent No 01/2020/LĐ-PT is mostly in Labour Code 2012, specifically (i) Article 15, 23, 38 and 42 of the Labour Code Furthermore, there are other provisions such as (ii) Article 289.1, 308 of the Civil Procedure Code; (iii) Article 12 of Resolution 326/2016/UBTVQH14 First of all, this case considers an employment relationship between the employee and the employer Under Article 15 Labour Code 20121, an employment relationship is governed by an employment contract (1) According to Article 23.1(c) Labour Code, the content of this Article also specifically sets out the work and the place of work (2) Based on the above Article 15 stipulated that an employment contract is an agreement between a worker and employer on the remunerated work, working conditions, rights and obligations of each party in the labour relations two elements, the employee must comply with the employer’s requirements on the work and the place of work unless the Labour Contract shall be terminated For instance, these requirements such as the nature of work (which tasks must be performed, whether the employee monitors the production process or not…), the place of work (whether this work is allowed remotely or not…) About the Court's decision on the remote work Agreement of Ms H and A Company, an Labour Contract, in particular, stipulates, among other things, the working location that the employee must comply with (Article 232) Failure to comply with the terms and conditions in the employment contract can potentially attract early termination Any changes to the working location must be made via an amendment to the employment contract Any amendment to the Labour contract must be made via an annex to the Labour contract (Article 35.23) Based on Article 24 of the Labor Code 2012 prescribes the annex to the labour contract: Article 23 stipulated “Contents of a labor contract” as follows: A labor contract must have the following principal contents: a/ Name and address of the employer or the lawful representative of the employer; b/ Full name, date of birth, gender, residence address, identity card number or other lawful documents of the employee; c/ Job and workplace; d/ Term of the labor contract; e/ Wage, form of wage payment, deadline for wage payment, wage-based allowances and other additional payments; f/ Regimes for promotion and wage raise; g/ Working time, rest time; h/ Labor protection equipment for the employee; i/ Social insurance and health insurance; j/ Training, retraining and occupational skill improvement Article 35.2 stipulated on Modification and supplementation of a labor contract: “In case the two parties can reach an agreement, the modification or supplementation of the labor contract must be carried out by signing an annex to the labor contract or signing a new labor contract.” “1 An annex to a labour contract is an integral part of the labour contract and is as valid as the labour contract An annex to a labour contract details some provisions or amends or supplements the contract.” According to the above provision, an annex detail amends or supplements the contract's provision On the other hand, in Article of the labour contract, it is stated: “ When two parties sign an annex to the labour contract, the content of the contract annex is as valid as the content of the labour contract.” However, in the two appendices signed later, no additional terms were agreed for Mrs H to work in France Thus, this Agreement does not specifically amend a provision in the existing employment contract, and not both parties explicitly state that it is an annex Therefore, the Remote working cooperation Agreement between Mrs H and the Company is not an annex It is not binding for the relationship between the Company and Mrs H and not valid to change Mrs H's working location as stated in the labour contract In my research, the employer can terminate at any time based on the specified conditions for a fixed-term contract In addition, Article 38 Labour Code 2012 stipulated “the right of an employer to unilaterally terminate the employment contract” as follows: An employer shall have the right to unilaterally terminate the employment contract in the following cases: a) The employee repeatedly fails to perform his/her work in accordance with the terms of the employment contract; b) An employee is sick or has an accident and remains unable to work after having received treatment for a period of twelve (12) consecutive months in the case of an indefinite term employment contract, for six (6) consecutive months in the case of a definite employment contract, or more than half the duration of the contract in the case of an employment contract for seasonal work or a specific task of less than 12 months Upon recovery, the employee shall be considered for reinstatement or continue to work for the employer c) In the event of a natural calamity, fire or force majeure as prescribed by law and the employer has exhausted all possibilities, and is forced to scale down production and reduce the workforce; d) The employee does not present him/herself at the workplace until the period stipulated in Article 33 of this Code expires When unilaterally terminating an employment contract an employer shall give notice to the employee as follows: a) at least 45 days in the case of an indefinite term employment contract; b) at least 30 days in the case of a definite term employment contract; c) at least 03 working days in the case of an employment contract for seasonal work or for a specific task of less than 12 months’ duration as stipulated in item b, Clause of this Article From these above provisions, an employer has the right to unilaterally terminate labour contracts in certain cases The defendant must notify by a reasonable time in order to unilaterally terminate the Contract with the plaintiff Mrs H has to work in France due to subjective conditions, so in case Mrs H is not often present at the company to perform her duties According to the court’s decision, there is a ground for A Company to unilateral terminate the Labour Contract However, the basis of the employer's unilateral termination of the labour contract is that the defendant must notify by a reasonable time in order to unilaterally terminate the Contract with the plaintiff (Art 38.2) based on the conditions specified in Clause without prior agreement procedures In this case, the email from A Company to Mrs H is just a notice of the agreement to terminate the labour contract, not a decision to unilaterally terminate Labour Contract since she did not meet the requirements of the company For this reason, the defendant has not violated their obligation to inform the employee in advance when unilaterally terminating the employment contract On the other hand, the company still considers her an employee and continues to pay Social Insurance, Unemployment Insurance, and salary payment for annual leave that Ms H has not used for her Thus, the email sent by the company to Mrs H is not considered an illegal unilateral decision to terminate the labour contract Therefore, the company is not required to perform the obligations of the employer when unilaterally terminating the labour contract contrary to the provisions of Article 42.3 Labour Code 2012 In addition, due to the fact that Mrs H did not move back to work at the Company, the Company did not have to pay Mrs H's salary from June 2018 according to the provisions of Clause 10, Article 15 of the Contract The Company's Collective Bargaining Agreement: “Payment when interrupting work: If it is the fault of the employee, the employee will not be paid” Through the above analysis, it is found that the plaintiff does not have enough evidence to sue the defendant, so the judgment of the court of first instance is preserved, grounded and lawful Therefore, the Court of Appeal found that there were no reasons to accept the plaintiff's appeal request; uphold the firstinstance judgement To the best of my knowledge, this is my analysis for this case Please not hesitate to let me know if any other research on this issue is needed! I am looking forward to hearing from you Sincerely yours, Quang Nguyen Nhat 10