COULD FOREIGN EMPLOYEE FILE A LAWSUIT IN VIETNAM?

Legal basis:

  • Civil Procedure Code 
  • Labor Code 
  • Resolution No.03/2012

According to Clause 1 Article 465 of the Civil Procedure Code, the rights and obligations of foreigners in Vietnam are regulated as follows: 

  1. Foreigners in Vietnam may initiate lawsuits to Vietnamese Courts to request the protection of their legitimate rights and interests when they are infringing upon or in dispute.
  2. When participating in civil procedures, foreigners in Vietnam shall have rights and obligations to conduct like Vietnamese citizens.
  3. The Vietnamese State may apply the principle of reciprocity to restrict relevant civil procedural rights of foreigners in Vietnam which the Courts of their countries restricted towards Vietnamese citizens.

Therefore, when a dispute arises between a foreign worker and an employer in Vietnam, a competent Court can be initiated to resolve the dispute. The rights and obligations of foreign employers are guaranteed the same as Vietnamese citizens.

 

When will foreign employees initiate a lawsuit?

According to point a Clause 1, point b Clause 7 Article 188 of the Labor Code, individual labor disputes involving foreign workers must be settled through mediation procedures of a labor mediator before requesting the Labor Arbitration Council or the Court to resolve, except for labor disputes that are not required to go through mediation procedures.

In cases mediation is not mandatory as prescribed in Clause 1 of Article 188, or the labor mediator fails to initiate the mediation by the deadline specified in Clause 2, or mediation does not succeed, under the provisions of Clause 4 of this Article, the disputing parties have the right to choose one of the following methods to resolve the dispute:

  1. a) Request the Labor Arbitration Council to settle the dispute by Article 189 of this Labor Code; or
  2. b) Request the Court to settle the dispute.

In addition, foreign workers need to pay attention to the statute of limitations for initiating lawsuits in Article 190 of the Labor Code: the statute of limitations for requesting a mediator to mediate a labor dispute is 6 months; request the Labor Arbitration Council to settle is 09 months; the Court request for resolution is 01 year. The time is counted from the date on which a party discovers the act of infringement of their lawful rights and interests.

In case the requester can prove that because of force majeure events, unfortunate events, or other reasons as prescribed by law, he/she cannot make a claim within the time limit specified in this Article, the time of the force majeure event, unfortunate event or such reasons are not included in the statute of limitations for requesting individual labor dispute resolution.

 

Which court has the jurisdiction to resolve labor disputes involving foreign elements?

According to Article 37 of the Civil Procedure Code, the Provincial People’s Courts are competent to settle according to first-instance procedures cases related to civil, marriage- and family-related, business, trade, or labor disputes except disputes falling within the jurisdiction of the district-level People’s Courts specified in Clauses 1 and 4, Article 35 of this Code.

According to the provisions of point a Clause 1, Article 39 of the Civil Procedure Code, the territorial court’s jurisdiction to settle civil cases is determined as follows:

The court where the defendant resides or works (if the defendant is an individual), or where the defendant is headquartered (if the defendant is an agency or organization) has jurisdiction to settle civil disputes according to first-instance procedures for civil, marriage- and family-related, business, trade or labor disputes of this Code.

Accordingly, this is a dispute where the plaintiff is a foreign employee and the defendant is an employer in Vietnam, so the jurisdiction to settle the dispute will belong to the Provincial People’s Court. In case there is no need for judicial entrustment because the involved parties are foreigners who reside, do business, study, or work in Vietnam and are present in Vietnam at the time the Court accepts the case, the jurisdiction shall belong to the district-level people’s court.