Part 2: notes for developing, promulgating and applying the evaluation regulation of employees’ duty fulfillment
Some factors to note and consider when developing the regulation for evaluating employees’ fulfillment of duties:
According to the regulations of the Labor Code 2019 and guiding documents, the regulation for evaluating employees’ fulfillment of duties has no specified and mandatory provision in terms of form as well as the necessary primary contents. This is an obstacle but also an advantage for employers when they can build these criteria according to their intention and management desire. However, in order for the regulation for evaluating employees’ fulfillment of duties to be approved by the competent authority, easy and practical, employers need to pay attention and consider the following factors, which are proposed and drawn from practical experience in the process of developing and promulgating in writing:
1. First, any document containing contents that violate the law’s prohibition will not be recognized by the competent authority, unenforceable, or canceled by the competent authority if a dispute arises even if the document is issued under the correct procedure. Therefore, the preconditions for the regulation for evaluating employees’ fulfillment of duties to be fully effective is that it does not contain any content that violates the prohibition of the law or is restricted by the law or even doesn’t have content that is not permitted by law and not regulated when not fully satisfying statutory conditions.
2. In addition, as “the law” directly regulates the behavior, activities, the process of performing work of the employee and a legal management tool of the employer towards the employee, the Labor Regulations and the Collective Bargaining Agreement (if any) will first prevail to adjust incurred labor-related issues. Therefore, to meet legal regulations, the regulation for evaluating employees’ fulfillment of duties must also be appropriate, consistent and can supplement the provisions of the Labor Regulations, the Collective Bargaining Agreement (if any). Developing appropriate internal employee management documents, consistent and have no conflicting terms and with other regulations issued before by the employer as well as following the business development plan/orientation of the employer is also an important issue to be considered.
3. Also, as mentioned, the regulation for evaluating employees’ fulfillment of duties is not bound in terms of form and content. This is considered an advantage that is “rarely” given to employers in the labor law. Therefore, employers should take advantage of this to develop criteria for evaluating employees with the most appropriate measures with the peculiarity and distinctive characteristics in the business field and the culture of their enterprises.
4. For a group of jobs with quantifiable characteristics such as selling, production activities, taking care of customers, the employer should concretize the criteria for assessing the level of work completion of the employee in specific numbers and proportions for each position and title held by the employee. However, the above method will cause more difficulties for employers when evaluating employees doing jobs with qualitative characteristics such as tourism, accounting, legal, design, art, service, etc… At that time, the employer should consider job performance, processing time, workload or creativity, customer feedback/evaluation for employees, etc… to develop accurate evaluation criteria. These evaluation criteria should be summarized in the process of the actual operation of the enterprise to reflect the level of work completion of the employees most accurately.
5. “The frequency of not fulfilling duties” is a factor that needs to be focused on and clarified in the regulation for evaluating employees’ fulfillment of duties. If the employee is not achieved, fulfill duties, and how often and how long will be regarded as repeatedly fails to perform the job are issues that need clarifying. If these issues are unclear and not specific, the regulation will be difficult to apply or disputes with employees in real situations. Employers are recommended that identifying employees who regularly fail to complete work to take any action should only be considered if the employee fails to meet the work standard, at least for the second time or more within a reasonable limit period.
6. For each position, a different job title should have its criteria and level of evaluation instead of “same criteria” to create objectivity. In addition, in the process of developing these criteria, the employer should collect and consult opinions and suggestions of the employees, the manager and representative organizations of employees (including the internal trade unions or a representative organization of employees at the enterprise) to have an objective, multi-dimensional assessment and reach the consensus of the employees in the process of application and implementation.
7. For the regulation for evaluating employees’ fulfillment of duties to optimize the functions, employers need to classify the groups and levels of behavior corresponding to certain forms of labor discipline prescribed in the legally registered Labor Regulations. In this case, the Labor Regulations must mention and refer to the regulation for evaluating employees’ fulfillment of duties as an integral and indispensable part of the Labor Regulations.
8. For your further information, other factors that employers should also pay attention to improve these criteria such as refer to more criteria for evaluating employees in the equivalent labor market to create consistent, harmonious in its assessment criteria; it is advisable to clearly define the work completion levels associated with the corresponding form of reward and discipline for easy monitoring and implementation; factors of working attitude, discipline compliance, creativity and relationship with superiors and colleagues can also be considered as an assessment criterion.
Developing and completing the regulation for evaluating employees’ fulfillment of duties thoroughly, appropriately and receiving the consent of the employees will create many values for the employer, including (i) it will be a tool for the employer to assess and determine the employee’s capacity on a factual basis when necessary, without affecting the general psychology of other employees and the employer’s business activities; (ii) motivate employees to work effectively so as not to be screened or be recognized and rewarded; (iii) protect and minimize the risk of legal consequences in disputes, complaints and lawsuits of employees.
Some notes when promulgating and applying the regulation for evaluating employees’ fulfillment of duties:
To apply the right to unilaterally terminate the labor contract because the employee repeatedly fails to complete the work, in addition to developing a clear and specific regulation for evaluating employees’ fulfillment of duties, the employer also has to promulgate and publicly apply these criteria according to specific procedures. One of the procedures that the employer must perform is to consult internal representative organizations of employees for the draft of assessment regulation of the fulfillment of duties before promulgating it for application. The consultation procedure with internal representative organizations of employees is carried out through dialogue at the workplace. Participants in the dialogue at the workplace will include representatives of the employer, employees or employees representative organizations. Usually, internal representative organizations of employees participating in the dialogue are internal labour unions. If the enterprise has not yet established internal trade unions, the immediate superior labour unions (also known as the district labor confederation) will act as a substitute.
To start the dialogue phase, the employer is responsible for sending a written proposal and the draft of assessment regulation of the fulfillment of duties to the representative organization of the employee for consultation. At that time, the representative organization of employees will hold dialogue under the law to collect opinions of the employees on the draft and aggregate it in writing to send to the employer. Based on these aggregated opinions, the employer and employee will discuss, exchange and unify contents. However, for companies that have not yet established internal labour unions, the employer will usually collect opinions or record confirmations from the employee directly to propose the immediate superior trade union to consider and approve the criteria draft to assess the fulfillment of duties.
After receiving the employee’s consent and the approval of the representative organization of the employee, the employer will promulgate complete the regulation for evaluating employees’ fulfillment of duties. At the same time, the regulation for assessing employees’ fulfillment of duties is notified to each department in the company for public and uniform application.
Although the Labor Code 2019 has taken effect to replace the 2012 Labor Code and amended and supplemented with many regulations to protect better the interests of the employer, in which the legalization of “the regulation for evaluating of employees’ fulfillment of duties” to clarify the employer’s right to unilaterally terminate the labor contract when the employee repeatedly fails to perform the work the labor contract is an important change. However, the labor law in general and the judicial practice in Vietnam, in particular, are still developed and applied in the spirit of protecting the weaker party in labor relations – the employee. Therefore, we recommend that in all actions and decisions related to the development and application of these criteria in the management and administration or termination of the labor relationship, the employer should consider carefully, be cautious and ensure to fully meet conditions prescribed by the law and strictly comply with procedures for implementation. In case of necessity, the employer should consult a lawyer before proceeding to minimize the damage incurred.