On January 17, 2025, at the headquarters of the People's Court of Dak Lak province, the appeal case No. 03/2024/TLPT-LD dated October 7, 2024 regarding "Request to cancel indefinite-term labor contract and request to pay salary" was publicly heard.
Because the first instance labor judgment No. 02/2024/LD-ST dated August 19, 2024 of the People's Court of Buon Ma Thuot city, Dak Lak province was appealed.
According to the Decision to bring the case to appeal trial No. 03/2024/QDPT-LD dated December 3, 2024, between the parties:
Plaintiff: Mr. Phan Ngoc D; Address: 2 N, Ward T, City B, Dak Lak Province. (Absent) Authorized representative of the plaintiff: Mr. Phan Minh H; Address: No. E, Street A, Village A, Commune C, City B, Dak Lak Province. (With a request for trial in absentia) Defender of the plaintiff's legitimate rights and interests: Mr. Phan Ngoc N – Lawyer of Office L, Bar Association of Dak Lak province; Address: No. E, Street A, Village A, Commune C, City B, Dak Lak province. (With a request for trial in absentia) – Defendant: Department of Market Management of D province.
Legal representative of the defendant: Mr. Mai Manh T - Position: Director of the Department of Market Management of D province. (Absent) The defendant's authorized representative participating in the proceedings: Ms. Bui Thi T1 – Position: Deputy Head of Organization and Administration Department, Market Management Department of Dak Lak province; Address: AT, City B, Dak Lak province. (With a request for trial in absentia)
– People with related rights and obligations: Sports training and competition center.
Legal representative: Mr. Nguyen Huu T2 - Position: Director; Address: BN, City B, Dak Lak Province. (With a request for trial in absentia) * Appellant: Plaintiff Mr. Phan Ngoc D.
CASE CONTENT
* During the proceedings, the plaintiff's authorized representative presented:
In March 1983, after graduating from the Agricultural Mechanical Engineering School, Mr. Phan Ngoc D was assigned to work at E Coffee Farm, then Mr. D was transferred to Farm 11/3, under the State-owned Company of D province.
In October 1990, Mr. D was accepted to work by the Department of Physical Education and Sports of D province, and was ranked as a civil servant driver. During his work, every year Mr. D enjoyed the regime of a civil servant according to the Civil Servants Law. Mr. D's salary coefficient was periodically increased and he was entitled to allowances according to regulations.
In Decision No. 2277 dated August 24, 2017 of the Provincial People's Committee, the State property of surplus cars was transferred. Accordingly, the Provincial People's Committee transferred the car with license plate 47C-2564 of the Sports Training and Competition Center under the Department of Culture, Sports and Tourism to C under Department C for management and use.
In Decision No. 720 dated April 6, 2018 of the Provincial People's Committee, 02 labor contract targets were transferred from the Department of Culture, Sports and Tourism to Department C.
Pursuant to Decision No. 720 mentioned above, on April 24, 2018, Director of Department V signed Decision No. 131 on the transfer of driver staff. Accordingly, Mr. D was transferred by Department V to take up his duties at Department C.
In Decision No. 80 dated April 26, 2018, Department C received and assigned C to sign the labor contract from May 2, 2018.
On May 2, 2018, the Market Management Department of Province C, based on Decree No. 68 dated October 17, 2000, signed an indefinite-term labor contract. Clause 2, Article 3 of the Contract stipulates: "Salary level: Code: 01.005; Level 12/12; exceeding the 17% frame and receiving other allowances (if any)... Regarding salary increase regime: Salary increase according to current regulations" In Decision No. 875 dated November 8, 2019, the Market Management Department of Province C adjusted Mr. D's seniority beyond the frame to Level 12/12. Salary coefficient 4.03; seniority beyond the frame from 18% to 19%.
According to regulations, the seniority allowance that Mr. D receives each year is 01%. However, in 2020, Department Q did not implement it with the reason: "Based on Decree No. 111 dated December 30, 2022 regulating contracts for certain types of work in administrative agencies...", although Clause 3, Article 13 of this Decree stipulates: "A person who is working as prescribed in Clause 2, Article 4 of this Decree and is signing a contract under Decree No. 68 is not required to re-sign the contract under the provisions of this Decree".
From July 1, 2023, implementing Decree No. 24 dated May 14, 2023 of the Government stipulating the basic salary for civil servants, public employees and armed forces. Accordingly, the basic salary is increased from VND 1,490,000 to VND 1,800,000, but Mr. D is not paid by the Department of Q according to the coefficient of 4.03 + seniority exceeding the framework (should be 24%) x with a basic salary of VND 1.8 million.
Mr. D noticed that he joined the work and paid social insurance since 1983. According to the provisions of Clause 1, Article 4 of Decree No. 68 dated November 17, 2000, "Those who were recruited into the payroll before the effective date of Decree No. 25/CP dated May 23, 1993 of the Government, and are doing the jobs mentioned in Article 1 of this Decree, shall not be transferred to the contract regime".
On October 29, 2021, the Provincial Q Department officially terminated the Labor Contract under Decree 68/2000/ND-CP with Mr. D under Decision No. 1043/QD-CQLTT. However, not notifying Mr. D in writing 03 working days in advance about the content of the contract change, which the Labor Law gives employees time to think about, is a violation of the Labor Law. The Q Department did not deliver the above decision to Mr. D. On the same day, Mr. D re-signed Labor Contract No. 1070/HDLD-CQLTT under Decree 161/2018/ND-CP, implementing only cash salary payment, no longer implementing only salary payment according to coefficient. Since October 29, 2021, Mr. D has been paid a salary of VND 9,800,000/month up to now.
At the time of signing the contract to change the form of one-time salary payment with the amount of 9,800,000 VND/month on October 29, 2021, because Mr. D did not understand the law, he thought that the actual salary received guaranteed his rights, so he agreed to sign the contract according to Decree 161/2018/CD-CQ. By 2023, when there was a change in the basic salary from 1,490,000 VND to 1,800,000 VND, Mr. D knew that he had lost his rights, so he reported it to the Market Management Department of D province, but to date it has not been resolved.
During the working process at the Court, Mr. D initiated a request for the Court to cancel the indefinite-term Labor Contract No. 217A/HDLD-QLTT dated May 2, 2018, between C and Mr. D due to violation of Clause 1, Article 4 of Decree No. 68.
At the first instance trial, the plaintiff partially changed the claim, requesting the Court to resolve the following issues:
1. Cancel Decision No. 1043/QD-CQLTT dated October 29, 2021 on terminating the Labor Contract with Mr. D, cancel the indefinite-term Labor Contract No. 1070/HDLD-CQLTT signed on October 29, 2021 between Mr. D and the Market Management Department of D province. Force the Market Management Department of D province to continue to perform the indefinite-term Labor Contract No. 217A/HDLD-QLTT signed on May 2, 2018, between C and Mr. D.
2. Force the Market Management Department of province D to implement the seniority promotion regime beyond the framework for Mr. D in 2020, 2021, 2022, 2023 and apply the basic salary according to Decree No. 24 dated May 14, 2023 from 1.49 million/month to 1.8 million/month and the basic salary of 2,340,000 VND according to Decree No. 73 dated June 30, 2024 as prescribed. At the same time, force the Market Management Department of province D to properly implement the regime of paying Mr. D's Social Insurance rate in accordance with regulations.
* During the litigation process, the defendant's authorized representative submits: display:
– On April 6, 2018, the People's Committee of D province issued Decision No. 720/QD-UBND on transferring the Labor Contract quota according to Decree No. 68/2000/ND-CP dated November 17, 2000 of the Government. Accordingly, C was assigned 02 Labor Contracts to perform driving duties;
– Pursuant to the Decision of the Provincial People's Committee, dated April 23, 2018, the Provincial Sports Training and Competition Center issued Decision No. 138/QD-HLTDTDTT on terminating the Labor Contract with Mr. Phan Ngoc D - a driver;
– On April 26, 2018, Department C issued Decision No. 80/QD-SCT on receiving and signing labor contracts under Decree 68/2000/ND-CP. Article 1 of the Decision clearly states: Mr. Phan Ngoc D was signed a labor contract under Decree 68/2000/ND-CP and assigned the Head of the Department Q to sign the labor contract according to current regulations and assign tasks from May 2, 2018;
– Pursuant to Decision No. 80/QD-SCT of the Provincial Department of Labor, dated May 2, 2018, C issued Decision No. 277/QD-QLTT on receiving and assigning employees under Labor Contracts according to Decree 68/2000/ND-CP. Also on this day, C signed Labor Contract No. 217A/HDLD-QLTT with Mr. Phan Ngoc D.
The acceptance and continued signing of the Labor Contract with Mr. D according to Decree 68/2000/ND-CP by C is the correct performance of functions, duties and powers according to the provisions of law and according to the assignment of the competent authority.
On November 29, 2018, the Government issued Decree 161/2018/ND-CP amending and supplementing a number of regulations on recruitment of civil servants and public employees, promotion of civil servants, promotion of public employees and implementation of contract regimes for certain types of work in State administrative agencies and public service units, effective from January 15, 2019.
According to Decree 161/2018/ND-CP, Mr. D is subject to this Decree. Clause 5, Article 3 of Decree 161/2018/ND-CP stipulates: "For administrative agencies, the cost of implementing contracts for the work specified in Article 1 of this Decree is guaranteed by the state budget and is arranged in the regular expenditure estimate outside the annual salary fund of the agency according to the provisions of law".
When Decree 161/2018/ND-CP was issued, but while waiting for the guiding documents, Department Q arranged autonomous funding sources, so it issued Decision No. 875 dated November 8, 2019, adjusting Mr. D's seniority beyond the framework to Level 12/12. Salary coefficient 4.03; seniority beyond the framework from 18% to 19%. Time from October 1, 2019.
Based on the regulations on the use of the above funds and the budget situation allocated to the unit, from 2020, the Provincial Q Department will not adjust the seniority coefficient exceeding the framework for Mr. D and 15 employees performing the work specified in Decree 68/2000/ND-CP.
– On October 29, 2021, implementing Decree 161/2018/ND-CP, the Provincial Department of Labor officially terminated the Labor Contract under Decree 68/2000/ND-CP with Mr. D under Decision No. 1043/QD-CQLTT. At the same time, the unit re-signed Labor Contract No. 1070/HDLD-CQLTT under Decree 161/2018/ND-CP, paid salary in cash, and no longer paid salary according to coefficients. From October 29, 2021 to present, Mr. D has been paid a salary of VND 9,800,000/month, the salary paid is not lower than the salary he is currently receiving at the time before signing the Contract. At the same time, the salary and other contents of the Labor Contract have been agreed upon and committed to by the employee and the employer. Mr. D was notified of the termination of the contract and agreed to sign the employment contract on the same day, October 29, 2021.
– From the time Decree 111/2022/ND-CP dated December 30, 2022 of the Government on contracts for certain types of work in administrative agencies and public service units takes effect (February 22, 2023), Department Q will switch to the form of signing service contracts with most employees under Labor Contracts. In the case of Mr. D, who has less than 24 months left until retirement from the effective date of this Decree, to ensure his rights, the unit will continue to let him perform the work and enjoy the regimes and policies he is enjoying without having to sign a labor contract as prescribed in this Decree.
– Pursuant to the provisions of the Labor Code, Decree No. 135/2020/ND-CP dated November 18, 2020 regulating retirement age, on May 2, 2024, Department Q issued Notice No. 466/TB-QLTTĐL on the termination of the Labor Contract to enjoy retirement benefits for Mr. D from November 1, 2024.
According to Decree No. 24/2023/ND-CP dated May 14, 2023 of the Government, among the 9 subjects eligible for an increase in the basic salary, the 4th subject is: "People working under the labor contract regime prescribed in Decree No. 111/2022/ND-CP dated December 30, 2022 of the Government on contracts for certain types of work in administrative agencies and public service units in cases where it is applicable or there is an agreement in the labor contract to apply salary classification according to Decree No. 204/2004/ND-CP dated December 14, 2004 of the Government on salary regime for cadres, civil servants, public employees and armed forces".
According to Decree 111/2022/ND-CP dated December 30, 2022 of the Government, Clause 2, Article 8 on Employee Rights stipulates: "Salary in the labor contract applies one of two forms: Applying the agreed salary level in accordance with the provisions of labor law or applying the salary according to the salary table of civil servants and public employees in accordance with the budget capacity of the agency, organization, or unit". Based on the budget estimate of the unit assigned annually by the competent authority, the leaders of the Market Management Department of D province agreed on the point of view: Applying the agreed salary level in accordance with the provisions of labor law for 16 employees performing support and service work at the agency, including Mr. Phan Ngoc D.
Therefore, the unit does not increase the basic salary by 1.8 million VND, the salary is 2.34 million VND and continues to implement the policy for him as agreed by the two parties in Labor Contract No. 1070/HDLD-CQLTT dated October 29, 2021.
In the Presentation sent to the Market Management Department of D province and in the working sessions with the unit, Mr. D consistently stated that he was a civil servant and the unit had to handle his regimes as a civil servant. Regarding this issue, Department Q has the following opinion: Clause 1, Article 4 of Decree No. 68/2000/ND-CP of the Government stipulates: "Those who were recruited into the payroll before the effective date of Decree No. 25/CP dated May 23, 1993 of the Government, and are doing the jobs mentioned in Article 1 of this Decree, shall not be transferred to the contract regime." This Decree and the documents guiding the implementation of the Decree do not stipulate that those who were recruited into the payroll before the effective date of Decree No. 25/CP dated May 23, 1993 of the Government, and are doing the jobs mentioned in Article 1 of this Decree are civil servants.
In addition, Clause 1, Article 1 of the Law on Cadres, Civil Servants and the Law on Public Employees 2019 defines: “Civil servants are Vietnamese citizens who are recruited and appointed to ranks, positions, and titles corresponding to job positions in agencies of the Party, the State, and socio-political organizations at the central, provincial, and district levels; in agencies and units under the Q but are not officers, professional soldiers, or defense workers; in agencies and units under the C1 but are not officers, non-commissioned officers serving under the professional regime, or police workers, on the payroll and receiving salaries from the state budget.”.
The Market Management Department of province D has properly implemented the regulations on the payment of social insurance rates for Mr. D according to the correct subjects and in accordance with the provisions of law.
Request the Court not to accept the lawsuit request of Mr. Phan Ngoc D.
* During the litigation process, the person with related rights and obligations presents:
Pursuant to Decree No. 29/2012/ND-CP dated April 12, 2012 of the Government on recruitment, use and management of civil servants; Pursuant to Decree No. 68/2000/ND-CP dated November 17, 2000 of the Government on implementation of contract regime for certain types of work in State administrative agencies and public service units; Pursuant to Decision No. 1011/QD-UBND dated May 15, 2016 of the People's Committee of D province on the establishment of Center H1, under Department V (On the basis of merging Center H1); Pursuant to Decision No. 1079/QD-SVHTTDL dated May 25, 2016 of Department V on the mobilization of civil servants and labor contracts. Including 44 civil servants, 07 labor contracts according to Decree 68/2000/ND-CP. To carry out the signing of employment contracts and labor contracts for civil servants and employees at the unit after the merger in accordance with the provisions of law. On December 30, 2016, H1 Center signed indefinite-term employment contracts for 44 civil servants and 07 labor contracts according to Decree 68/2000/ND-CP (In which, Mr. Phan Ngoc D's indefinite-term employment contract No. 354/HĐLV-HLTĐTDTT signed on December 30, 2016, grade 01.010, level 12/12, coefficient 4.03 +16% exceeded the frame). The implementation of the indefinite-term labor contract for Mr. Phan Ngoc D was signed on the same day with all officials and employees of the unit and was completely in accordance with the provisions of law. According to Decision No. 720 dated April 6, 2018 of the Provincial People's Committee, D transferred 02 labor contract targets from the Department of Culture, Sports and Tourism to Department C. Implementing the above Decision No. 720, on April 24, 2018, the Director of Department V signed Decision No. 131/QD-SVHTTDL on the transfer of driver staff for Mr. Phan Ngoc D; the unit has resolved the procedures related to the rights and obligations of Mr. Phan Ngoc D in accordance with the provisions of law.
In judgment No. 02/2024/LD-ST dated August 19, 2024 of the People's Court of the city Buon Ma Thuot, Dak Lak province has decided:
Pursuant to Clause 1, Article 32, Point c, Clause 1, Article 35; Point a, Clause 1, Article 39, Article 266, Article 271, Article 273 of the Civil Procedure Code.
Clause 2, Articles 6, 12, 20, 21, 23, 28, 90, 95 of the Labor Code. Decree 161/2018/ND-CP dated November 29, 2018 amending and supplementing a number of regulations on recruitment of civil servants and public employees, promotion of civil servants, promotion of public employees and implementation of contract regimes for certain types of work in State administrative agencies and public service units. Decree No. 24/2023/ND-CP dated May 14, 2023 of the Government, and Decree No. 111/2022/ND-CP dated December 30, 2022 of the Government Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly regulating the collection, exemption, reduction, collection, payment, management and use of court fees and charges.
Verdict: Do not accept all of Mr. Phan Ngoc D's lawsuit requests regarding:
– Request to cancel Decision No. 1043/QD-CQLTT dated October 29, 2021 on termination of the Labor Contract with Mr. D, cancel the indefinite-term Labor Contract No. 1070/HDLD-CQLTT signed on October 29, 2021 between Mr. D and the Market Management Department of D province. Force the Market Management Department of D province to continue to perform the indefinite-term Labor Contract No. 217A/HDLD-QLTT signed on May 2, 2018, between C and Mr. D.
– Force the Market Management Department of province D to implement the seniority promotion regime beyond the framework for Mr. D in 2020, 2021, 2022, 2023 and apply the basic salary according to Decree No. 24 dated May 14, 2023 from 1.49 million/month to 1.8 million/month and the basic salary of 2,340,000 VND according to Decree No. 73 dated June 30, 2024 as prescribed. At the same time, force the Market Management Department of province D to properly implement the regime of paying Mr. D's Social Insurance rate in accordance with regulations.
In addition, the first instance judgment also ruled on court fees and the right to appeal for the parties.
On August 31, 2024, the plaintiff Mr. Phan Ngoc D appealed the first instance labor judgment No. 02/2024/LD-ST dated August 19, 2024 of the People's Court of Buon Ma Thuot City, Dak Lak Province. Requesting the Court of Appeal to accept Mr. Phan Ngoc D's lawsuit request.
Viewpoint of the Representative of Dak Lak Provincial People's Procuracy at the trial:
Regarding proceedings: The judge and the appellate panel strictly complied with the provisions of the Civil Procedure Code.
Regarding the content: Based on the documents collected in the case file and the written statements of the parties, it is considered that the entire appeal of the plaintiff Mr. Phan Ngoc D is baseless, so the Panel of Judges is requested to base on Clause 1, Article 308 of the 2015 Civil Procedure Code: Not to accept the entire appeal of the plaintiff Mr. Phan Ngoc D. Uphold the original First Instance Labor Judgment No. 02/2024/LD-ST dated August 19, 2024 of the People's Court of Buon Ma Thuot City, Dak Lak Province.
JUDGMENT OF THE COURT
Based on the documents and evidence collected in the case file, examined at the trial; based on the results of the debate at the trial; on the basis of a full and comprehensive review of the documents, evidence, statements of the parties, and opinions of the Prosecutor, the Panel of Judges finds as follows:
[1] Regarding the proceedings: The plaintiff's appeal was filed within the statutory time limit and is exempt from paying the advance payment of appeal fees, so it should be considered and resolved according to the appeal procedure.
Regarding the absence of the parties: Plaintiff Mr. Phan Ngoc D; the legal representative of the defendant Mr. Mai Manh T - Director of the Market Management Department of province D was absent. The authorized representative of the plaintiff Mr. Phan Minh H; the person protecting the legal rights and interests of the plaintiff Mr. Phan Ngoc N; the authorized representative of the defendant Ms. Bui Thi T1; the legal representative of the person with related rights and obligations Mr. Nguyen Huu T2 - Director of Center H1 submitted a request for trial in absentia. Therefore, the Panel of Judges' trial in absentia is in accordance with the provisions of Articles 227 and 228 of the Civil Procedure Code.
[2] About the content:
[2.1] Considering the plaintiff's request for lawsuit and appeal, Mr. Phan Ngoc D:
On December 30, 2016, H1 Provincial Sports Training and Competition Center signed an indefinite-term employment contract with Phan Ngoc D, professional title: Agency driver, position: Employee.
On April 6, 2018, the People's Committee of D province issued Decision No. 720/QD-UBND on transferring the Labor Contract quota according to Decree No. 68/2000/ND-CP dated November 17, 2000 of the Government.
On April 23, 2017, H1 Center issued Decision No. 138/QD-HLDTTDTT on terminating the Labor Contract with Mr. Phan Ngoc D.
On April 26, 2018, the Department of Industry and Trade of D province issued Decision No. 80/QD-SCT on receiving and signing labor contracts under Decree 68/2000/ND-CP. Article 1 of the Decision states: Mr. Phan Ngoc D was signed a labor contract under Decree 68/2000/ND-CP and assigned the Head of Department C to sign the labor contract according to current regulations and assign tasks from May 2, 2018.
On May 2, 2018, C issued Decision No. 277/QD-QLTT on receiving and assigning employees to Labor Contracts under Decree 68/2000/ND-CP. On the same day, the Market Management Department of C province signed Labor Contract No. 217A/HDLD-QLTT with Mr. Phan Ngoc D.
On November 29, 2018, the Government issued Decree 161/2018/ND-CP amending and supplementing a number of regulations on recruitment of civil servants and public employees, promotion of civil servants, promotion of public employees and implementation of contract regimes for certain types of work in State administrative agencies and public service units, effective from January 15, 2019.
Pursuant to Decree 161/2018/ND-CP, on October 29, 2021, the Provincial Market Management Department issued Decision No. 1043/QD-CQLTT on the termination of the Labor Contract under Decision No. 80/QD-SCT dated April 26, 2018 with Mr. D. At the same time, on October 29, 2021, the Provincial Market Management Department re-signed Labor Contract No. 1070/HDLD-CQLTT under Decree 161/2018/ND-CP with Mr. Phan Ngoc D, implementing only cash salary payment, no longer implementing only salary payment according to coefficient.
On May 2, 2024, the Market Management Department of D province issued Notice No. 466/TB-QLTTDL on the termination of the Labor Contract to enjoy retirement benefits for Mr. Phan Ngoc D from November 1, 2024.
[2.2] Considering the request to cancel Decision No. 1043/QD-CQLTT, dated October 29, 2021 on termination of the Labor Contract; cancel the indefinite-term Labor Contract No. 1070/HĐLĐ-CQLTT, dated October 29, 2021 signed between Mr. Phan Ngoc D and the Market Management Department of D province. Compelling the Market Management Department of D province to continue to perform the indefinite-term Labor Contract No. 217A/HĐLĐ-QLTT signed on May 2, 2018, considering that:
Pursuant to Article 3 of Decree 161/2018/ND-CP dated November 29, 2018 of the Government, Mr. Phan Ngoc D is eligible to sign a labor contract when the unit has a need for approved job positions (because Mr. D is a driver of the Market Management Department of D province according to Decision No. 80/QD-SCT dated April 26, 2018 of the Department of Industry and Trade of D province, on receiving and signing labor contracts according to Decree 68/2000/ND-CP to implement Decision No. 720/QD-UBND dated April 6, 2018 of the People's Committee of D province on transferring labor contract quotas according to Decree No. 68/2000/ND-CP dated November 17, 2000 of the Government); Accordingly, the cost of implementing the contract for the administrative agency is guaranteed by the state budget and is arranged in the regular expenditure estimate outside the annual salary fund of the agency according to the provisions of law. Based on the regulations on the use of funds and the budget situation allocated at the unit, the Market Management Department of D province issued Decision No. 1043/QD-CQLTT and signed an indefinite-term labor contract No. 1070/HĐLĐ-CQLTT, on the same day, October 29, 2021, with Mr. D to replace labor contract No. 217A/HĐLĐ-QLTT, dated May 2, 2018, which is in accordance with the regulations.
Labor contract No. 271A/HDLĐ-QLTT dated May 2, 2018, signed between the Market Management Department of province C and Mr. Phan Ngoc D, was based on Decision No. 80/QD-SCT dated April 26, 2018 of the Department of Industry and Trade of province D. This labor contract was terminated according to Decision No. 1043/QD-CQLTT, dated October 29, 2021 of the Market Management Department of province D, so it has expired.
In addition, Decree 161/2018/ND-CP dated November 29, 2018 of the Government, effective from January 15, 2019 to August 20, 2024, is completely abolished. Thus, the Market Management Department of D province based on Decree 161/2018/ND-CP of the Government to sign labor contract No. 1070/HDLD-CQLTT dated October 29, 2021 with Mr. D is in accordance with the provisions of law.
Mr. Phan Ngoc D stated that: On October 29, 2021, the Provincial Q Department officially terminated the Labor Contract under Decree 68/2000/ND-CP with Mr. D, according to Decision No. 1043/QD-CQLTT. However, not notifying Mr. D in writing 03 working days in advance about the content of the contract change, not delivering the above decision to Mr. D is a violation of the Labor Law. The Panel of Judges found that: Although the Provincial Q Department could not prove that it had notified or delivered Decision No. 1043 to Mr. D, on the same day, October 29, 2021, Mr. D re-signed Labor Contract No. 1070/HDLD-CQLTT under Decree 161/2018/ND-CP with the Provincial Q Department, only paying salary in cash. Thus, Mr. D knew about the termination of the Labor Contract according to Decree 68 and agreed to re-sign the Labor Contract No. 1070/HĐLĐ-CQLTT according to Decree 161.
[2.3] Considering the request to force the Market Management Department of province D to implement the seniority promotion regime beyond the framework for Mr. D in 2020, 2021, 2022, 2023 and apply the basic salary according to Decree No. 24 dated May 14, 2023 from VND 1,490,000/month to VND 1,800,000/month and the basic salary of VND 2,340,000 according to Decree No. 73 dated June 30, 2024 as prescribed. At the same time, the Market Management Department of province D must properly implement the regime of paying the Social Insurance rate of Mr. D, considering that:
Clause 5, Article 3 of Decree 161/2018/ND-CP dated November 29, 2018 of the Government stipulates: "For administrative agencies, the cost of implementing contracts The work specified in Article 1 of this Decree is guaranteed by the state budget and is arranged in the regular expenditure estimate outside the annual salary fund of the agency according to the provisions of law.". Based on the regulations on the use of funds and considering the budget situation allocated to the unit, from 2020, Department Q will not adjust the seniority coefficient exceeding the framework for Mr. D but terminate the labor contract according to Decree 68/2000/ND-CP, and will not pay salary according to the coefficient.
Re-signing Labor Contract No. 1070/HĐLĐ-CQLTT dated October 29, 2021, accordingly, Department Q will pay salary in cash, salary level 9,800,000 VND/month, not lower than the salary Mr. D was receiving at the time before re-signing the contract. Therefore, Mr. D's claim that Labor Contract No. 1070/HĐLĐ-CQLTT dated October 29, 2021 affects his rights is unfounded.
Regarding the request to apply the basic salary according to Decree No. 24 dated May 14, 2023 from VND 1,490,000/month to VND 1,800,000/month and the basic salary of VND 2,340,000 according to Decree No. 73 dated June 30, 2024, considering that: According to the provisions of Clause 4, Article 2 of Decree No. 24/2023/ND-CP dated May 14, 2023 and Point d, Clause 1, Article 2 of Decree No. 73/2024/ND-CP dated June 30, 2024 of the Government on subjects entitled to receive salaries and allowances according to the new base salary level, Mr. D is not subject to the new basic salary level. Clause 2, Article 8 of Decree No. 111/2022/ND-CP dated December 30, 2022 of the Government stipulating the rights of employees, the application of the salary level agreed between the Department of Q and Mr. Phan Ngoc D is in accordance with the provisions of law. The signing of contract No. 1070/HDLĐ-CQLTT dated October 29, 2021 is voluntary by both parties, in accordance with the provisions of law.
[2.4] Regarding the request to force the Market Management Department of province D to properly implement the regime of paying social insurance rates for Mr. D, it is considered that: According to Article 4 of the Law on Civil Servants 2004 and Clause 1, Article 1 of the Law amending and supplementing a number of articles of the Law on Cadres, Civil Servants and the Law on Public Employees 2019, Mr. D is not a cadre, civil servant or public employee. The Market Management Department of province D has implemented the regime of paying social insurance rates for Mr. D according to the correct subjects and in accordance with the provisions of law.
From the above analysis and comments, there is no basis to accept the appeal of the plaintiff Mr. Phan Ngoc D. It is necessary to maintain the original first-instance labor judgment No. 02/2024/LD-ST dated August 19, 2024 of the People's Court of Buon Ma Thuot city, Dak Lak province.
[3] Regarding court fees: Plaintiff Mr. Phan Ngoc D is exempted from appeal labor court fees.
Other decisions of the first instance judgment that are not appealed or protested have become legally effective from the date of expiration of the appeal or protest period.
For the above reasons;
DECISION
- Pursuant to Clause 1, Article 308 of the Civil Procedure Code;
Not accepting the appeal of the plaintiff Mr. Phan Ngoc D. Upholding the original first instance labor judgment No. 02/2024/LD-ST dated August 19, 2024 of the People's Court of Buon Ma Thuot city, Dak Lak province.
- Pursuant to Clause 2, Articles 6, 12, 20, 21, 23, 28, 90, 95 of the Labor Code.
– Decree 161/2018/ND-CP dated November 29, 2018 amending and supplementing a number of regulations on recruitment of civil servants and public employees, promotion of civil servants, promotion of public employees and implementation of contract regimes for certain types of work in State administrative agencies and public service units. Decree No. 24/2023/ND-CP dated May 14, 2023 of the Government, and Decree 111/2022/ND-CP dated December 30, 2022 of the Government – Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly regulating the collection, exemption, reduction, collection, payment, management and use of court fees and charges.
Verdict:
[1] Do not accept all of Mr. Phan Ngoc D's lawsuit requests regarding:
– Request to cancel Decision No. 1043/QD-CQLTT dated October 29, 2021 on termination of the Labor Contract with Mr. D, cancel the indefinite-term Labor Contract No. 1070/HDLD-CQLTT signed on October 29, 2021 between Mr. D and the Market Management Department of D province. Force the Market Management Department of D province to continue to perform the indefinite-term Labor Contract No. 217A/HDLD-QLTT signed on May 2, 2018, between C and Mr. D.
– Force the Market Management Department of province D to implement the seniority promotion regime beyond the framework for Mr. D in 2020, 2021, 2022, 2023 and apply the basic salary according to Decree No. 24 dated May 14, 2023 from 1.49 million/month to 1.8 million/month and the basic salary of 2,340,000 VND according to Decree No. 73 dated June 30, 2024 as prescribed. At the same time, force the Market Management Department of province D to properly implement the regime of paying Mr. D's Social Insurance rate in accordance with regulations.
[2] Regarding court fees: Plaintiff Mr. Phan Ngoc D is exempted from appeal labor court fees.
Other decisions of the first instance judgment that are not appealed or protested have become legally effective from the date of expiration of the appeal or protest period.
The appellate judgment takes legal effect from the date of judgment.
