Part 1: The overview of The regulation for evaluating of employees’ fulfillment of duties
Stemming from severe legal consequences of unilateral terminations of the labor contract, regulations on the right of employees and employers to unilaterally terminate the labor contract have always been focused on by the State. Inheriting and promoting the provisions of the Labor Code 2012, the Labor Code 2019 has many amendments, supplements, updates and adjustments to these rights. In particular, the employer’s right to unilaterally terminate the labor contract is given more attention and protection to balance the employee’s interests, especially in the case that the employee repeatedly fails to perform their work according to the signed labor contract.
The overview of The regulation for evaluating employees’ fulfillment of duties:
The unilateral termination of the labor contract for the employee who repeatedly fails to perform the work according to the labor contract is determined based on assessment through specific criteria of employees’ fulfillment of duties established by the employer. However, employers still have many difficulties and obstacles in developing, promulgating and these criteria because they have not been disseminated and have no specific guidance. Therefore, this article will provide employers with an overview of the criteria for assessing the fulfillment of duties and some notes when effectively developing, promulgating and applying these criteria to ensure their legitimate rights of the employer and meet the regulations of laws.
The evaluation of how the employee’s work is considered complete or incomplete; or done at a normal or excellent level; or failure to complete at the normal or regular level under normal working conditions in the workplace is complex and difficult for employers and other workers managers. Moreover, in the context of the current global situation of the Covid -19 epidemic, changing the working method from directly at the workplace, the production, business location to working form with more flexibility such as online at home, rotation, remote management, it becomes even more challenging to assess work completion. At that time, what solution to control, manage, and adequately evaluate employees’ capacity and work performance to take appropriate action and handling plans is a big question being asked for employers. And the reasonable, objective and accurate criteria for assessing the fulfillment of duties will solve the above problem.
In principle, the promulgation of the criteria for assessing the fulfillment of duties is not mandatory for employers. However, if the employer needs to unilaterally terminate the labor contract with the employee who repeatedly fails to complete the work, these criteria are mandatory. Not stopping at the above function, the regulation for evaluating of employees’ fulfillment of duties is also a valuable and effective tool of the employer in professionally managing, assessing and recognizing the capacity of the employee, thereby having the appropriate personnel policies to promote and retain potential employees and employees have exemplary achievements at work. At the same time, these criteria can also be considered the clearest reference table so that each employee can monitor and evaluate their work capacity against the target set by the employer, thereby making appropriate adjustments in the working process.
However, the current situation is that only a few employers pay attention, invest, and research to develop the criteria for assessing the fulfillment of duties comprehensively. Almost, the criteria for assessing the fulfillment of responsibilities are not clear and are only sporadically regulated in various notices and documents by the employer; or just “implicit” evaluation criteria among employees’ managers. In this case, the employer encounters the problem when there are employees who often work inefficiently, fail to meet the employer’s sales and work quality targets, and are assessed as no longer suitable to the employer’s needs. Still, the employer does not have clear and robust evidence and criteria to make assessments and conclusions about the employee’s job completion according to the signed labor contract. In addition, the employer also has no basis for deciding on appropriate forms of labor discipline or applying more severe measures than unilaterally terminating the labor contract. Therefore, usually, most employers often ask legal consultants with the desire to get the optimal solution for terminating labor contracts with these employees when they have fallen into a situation where there is no basis or the basis not strong enough, original or potentially risky of facing legal consequences due to illegal unilateral termination of labor contracts.
Thus, It can be seen that it is necessary to develop the criteria for assessment of the fulfillment and these criteria play an essential role, deciding whether the employer can apply or not the right to unilaterally terminate the labor contract because the employee does not complete the work according to the labor contract. Especially in the context of the current changing, volatile and difficult-to-control working environment, terminating the labor relationship with employees who cannot work, are not enthusiastic about the business is the solution optimized for cost and personnel. In addition, the proper recognition of the roles and functions of the regulation for evaluating of employees’ fulfillment of duties will give employers appropriate orientations and actions to build a complete employee management system.
