Quietly quitting: Perspective of law (Part 2)

Quietly quitting: Perspective of law (Part 2)

In the previous part, we went through a good understanding of the concept of “Quietly Quitting”, which may have been and is smouldering among employees around the world, including Vietnam. Companies, as employers, always want their employees to work with the highest possible efficiency, so it may be desirable to limit this situation. Part 1 of the series gave the employees legal notice on some of the views of the Quietly Quitting. This part, following those factors, provides employers with a number of relevant legal provisions to consider in labor coordination solutions at the company in the era of Quietly Quitting that has emerged up.

1. Assigning employees to work “other” tasks

As in part 1, one of the status of Quietly Quitting is that employees just want to do their tasks within the scope of work. Normally, companies will often stipulate in the job description of any employee a final provision as “Other jobs as assigned by the manager/company from time to time” as a backup regulation in the management, administration and supervision of labor in order to mobilize employees to perform a number of other jobs that, at the time of contract negotiation or job description regulations, the company may not foresee. In fact, some companies currently use this regulation as a way of dealing with Quietly Quitting.

From the point of view of the employer, the above provision in the job description/contract may give the company the right to coordinate the labor from time to time, but it should not be understood that, the company is entitled to assign any jobs to the employees at any time only with this regulation, and this regulation does not completely protect the company completely in all cases where the company assigning the employees doing other jobs.

Article 29 of the Labor Code 2019 (“Labour Code”) stipulates the conditions and implementation process when transferring employees to do “other work” compared to the labor contract. Accordingly, in order to transfer the employee to a job other than the labor contract, it is necessary to ensure many strict conditions, and only in certain cases specified by law. Although “other work” in Article 29 of the Labor Code can be understood as another title or position different from the title and position of the employee in the labor contract, the spirit of Article 29 of the Labor Code can show that Vietnamese law implies that employees should be allowed to do the right professional work according to the position and title of the employee.

More seriously, point a, clause 2, Article 35 of the Labor Code also stipulates that the employee has the right to unilaterally terminate the labor contract without prior notice in case he is not arranged for the right job, working location or guaranteed working conditions as agreed, except for the case specified in Article 29 of this Code.

Therefore, this is point that employers should note. In arranging and coordinating employees, especially for “other jobs”, the company should consider arranging these jobs in accordance with or related to the employees’ professional expertise. This is not only to limit the risk of the company having to comply with the procedures of Article 29 of the Labor Code or in the case that the employee is entitled to unilaterally terminate the contract specified at point a, Clause 2, Article 35 of the Labor Code, but also to avoid prolonging the conflict between the two sides because employees have to do many non-specialized jobs, thereby continuing the Quietly Quitting loop.

2. Working hours and overtime

The next status of Quietly Quitting is that employees only want to work in the specified working time. This is basically reasonable in labor relations when the company’s monthly salary payment to employees is fixed (excluding bonuses and other allowances) equivalent to the working time that the employees work. In other words, employees have the right to refuse to work overtime. Point a, Clause 2, Article 107 of the Labor Code 2019 also confirms this when stipulating that overtime work must be agreed by the employee (except for some exceptions related to emergencies). In this case, the employer will want to strictly control the working time of the employee. And in order to avoid violating the current provisions of the law but still strictly manage the working time of employees instead of other options, the company should note to:

– Clearly specify the working time, rest time of the employees and the disciplinary measures for violations of the working hours in the labor contract and/or the company’s internal regulations (internal labor regulations/collective labor agreement);

– Announce the method of record working time (time card, fingerprint, identification …);

– Strictly comply with the principles and order of disciplinary handling specified in Article 122 of the Labor Code in case of any violation of working time that it is necessary to be disciplined;

– Record the employee’s agreement to the request for overtime work and pay the corresponding payment for the overtime hours specified in Article 98 of the Labor Code.;

– Ensure the total of overtime hours does not exceed the limitation under the provisions of Article 107 of the Labor Code.

Here are some tips for controlling the working hour during Quietly Quitting. Controlling working time can be an option and somehow will deterrent with Quietly Quitting, but it is usually not too effective.

3. Evaluating based on performance results

The management of working time in Section 2 above can be applied in some production companies, however, in the current era when positions and functions are increasingly diverse, the management of working time is no longer effective. For example, there is a case where an employee is present at the company on time and in full, but the work efficiency is not as high as another employee who only works half that time. Therefore, currently, instead of strictly managing working time to deal with Quietly Quitting, employers usually consider a management plan based on goals, work results (“KPI”).

Clause 1, Article 36 of the Labor Code grants the employer the right to unilaterally terminate the labor contract if The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfilment of duties in internal evaluation policies established by the employer. This is a new regulation compared to the Labor Code 2012, thereby increasing the control power for employers. However, the employer should note that, in order to apply this regulation, the employer needs to strictly comply with the accompanying conditions:

– Clause 1, Article 36 of the Labor Code also stipulates the criteria for assessment of employees’ fulfilment established by the employer but must consult the employee representative organization at the grassroots level for the place where there’s a representative organization located. Therefore, employers should note that any KPI evaluation regulation requires two steps: (1) consult with the employee representative organization at the facility (the grassroots trade union, if any, or similar); and (2) establish the regulations. Companies often fail such tests due to the thought that KPIs can be notified verbally between managers and employees, or through emails and messages, leading to difficulties in handling later; and

– It is necessary to define the level of “regularly not completing”. This norm can be established in the internal labor regulations/collective labor agreement to handle at each level of discipline, or even in the evaluation regulation itself. It is important for employers to note that the employer should clearly specify the completion norms, so that if necessary, this regulation can be applied to handle later disputes.

In this part, the employer has some additional notes in coordinating to handle the Quietly Quitting situation of employees. Although Quietly Quitting can in some ways be seen as reasonable requirements of employees, it is agreed that Quietly Quitting will significantly reduce efficiency and expectations of the employer in the performance and results. As mentioned above, the companies may consider, or maybe already be in the process of applying the above methods to deal with this situation, but above all, companies should also pay attention to complying with the relevant legislation to avoid making violations.

Disclaimer:

This article is for general information only and is not a substitute for legal advice. Apolat Legal is a Vietnamese law firm with experience and capacity to advise on matters related to Employment. Please click here to learn more about our services and contact our lawyers in Vietnam for advice via email info@apolatlegal.com.

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