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As Vietnam’s economy continues to grow and integrate deeply into the global economy, labor disputes have become more common and complex. Resolving these disputes requires not only a thorough understanding of the law but also solid and reliable evidence.
However, in practice, disputing parties may not always be able to fully gather and present the necessary evidence as required by law to protect their rights. This article delves into some key considerations regarding evidence in labor disputes in Vietnam, from legal regulations to practical applications, aiming to help disputing parties and legal consultants gain a clearer understanding and better preparation for resolving disputes related to labor issues in general and specific disputes in particular.
The Burden of Proof in Labor Disputes
In civil relationships, which are essentially personal relationships between disputing parties, the parties have the freedom to negotiate, decide, and resolve issues themselves. Therefore, when a dispute arises and judicial intervention is needed to determine right from wrong and to assign responsibility and compensation, the parties have the obligation to prove their positions.
The plaintiff has the obligation to prove the truthfulness and reasonableness of their claims, while the defendant must prove any counterclaims if they exist.
Article 6, Clause 1 of the 2015 Civil Procedure Code No. 92/2015/QH13 (“2015 Civil Procedure Code“) stipulates that litigants have the right and obligation to actively gather and submit evidence to the court and to prove that their claims are grounded and lawful.
In civil litigation, the burden of proof is a procedural activity. Litigants have the right and obligation to actively gather evidence about the past dispute in a meticulous, objective, and accurate manner to submit to the court. This helps the court ascertain the facts of the dispute, thereby determining whether the basis for the lawsuit or objection by the litigants is reasonable.
The process of searching for, identifying, submitting, and using evidence in civil litigation must be conducted in accordance with the provisions of civil procedural law, including the provision of evidence, the collection of evidence, the study of evidence, and the evaluation of evidence.
This is to prevent litigants from selectively gathering and submitting evidence that favors their side, which would make it difficult for the court to ascertain the specific details of the dispute. When the court receives complete, accurate, and objective evidence from both sides, it will issue a judgment or decision that is lawful and consistent with the available evidence that has been gathered, submitted, and used to prove the case during the litigation process.
During the process of proving the case, the burden of proof may shift from one litigant to another under certain conditions. Specifically, when the plaintiff initiates a lawsuit, the burden of proof lies with the plaintiff, as they are the party initiating the case and therefore must be the first to prove their claims.
However, if the plaintiff fails to provide evidence supporting their claims and the defendant submits counterclaims, the burden of proof then shifts to the defendant, who must prove their counterclaims, potentially leading the court to dismiss the plaintiff’s claims.
In addition to this general rule, there are exceptions where the initial burden of proof lies with the defendant, even when the plaintiff has filed the lawsuit. For example, in certain labor disputes where an employer unlawfully dismisses or terminates an employee, and the employee files a lawsuit against the employer, the burden of proof regarding the legality of the dismissal or unilateral termination lies with the employer.
Key Considerations Regarding Evidence in Labor Disputes in Vietnam
Labor disputes are complex and increasingly common as Vietnam’s economy and society develop, with the labor force being the driving force of operation and growth. One of the critical factors determining the success or failure in resolving labor disputes is evidence. Evidence not only helps clarify the events and situations involved but also ensures the legal rights of the parties involved.
Some important points regarding evidence in labor disputes that disputing parties and legal practitioners should pay attention to include:
Legitimacy in the Evidence Collection Process
Evidence in labor disputes will only have probative value in the case if it meets three attributes: legality, objectivity, and relevance.
- Legality is satisfied when evidence is collected, examined, and verified according to the procedures prescribed by relevant law.
- Objectivity is met when evidence is gathered from an unbiased perspective, without favoring any party in the dispute.
- Relevance is fulfilled when the evidence directly relates to the facts of the dispute; evidence not directly related to the case but submitted to influence the final judgment will not be accepted.
If the submitted evidence does not meet these conditions, it will not be recognized as evidence. The litigants may still submit such documents to the court, which may note them as reference materials. How these reference materials are used will depend on the court, meaning they may be considered, compared, or may not be used at all.
Evidence can take many forms and can be collected from various sources without limitation. For example, evidence can be submitted in the form of documents, electronic data, physical evidence, statements from litigants, witnesses, notarized documents, and certified documents.
In cases where litigants cannot collect evidence on their own, they have the right to request agencies, organizations, or individuals who are storing or managing documents and evidence to provide them or to request the court to verify and collect documents and evidence.
Email as Admissible Evidence
Contrary to the common belief that online information is easily forged or altered and that only “black and white” documents are credible and unchangeable evidence, emails in the digital environment are now recognized as legitimate evidence.
Article 94, Clause 1 of the 2015 Civil Procedure Code acknowledges electronic data as a source of evidence. Article 95, Clause 3 of the same code specifies how electronic data messages, including those in the form of electronic data exchanges, electronic documents, emails, telegrams, telexes, faxes, and other similar forms as stipulated by the law on electronic transactions, are recognized.
In Judgment No. 29/2018/LĐ-PT dated November 20, 2018, the Binh Duong Provincial People’s Court acknowledged the evidentiary value of emails exchanged between the employee and the employer, regarding the company’s request for the employee to resign and prohibiting them from continuing to work at the company.
Testimony Not Recognized as Evidence Due to Lack of Objectivity
To be recognized, evidence must possess all three attributes: legality, objectivity, and relevance. If these attributes are met, even a witness’s testimony can be accepted as evidence in court.
However, in many cases, the testimony of a witness who directly observed the facts of a civil dispute, without any intermediary, or who heard the account from others, may still be rejected due to a lack of objectivity.
Historically, there have been instances where witnesses provided false information, either intentionally or unintentionally distorting the objective truth or their perception of the event. Their testimony might also be exaggerated, understated, or manipulated to influence the outcome of the case.
Due to the difficulty in verifying the accuracy of testimony, it is common for authorities to conduct checks and verification through specific investigative measures upon receiving witness statements.
In a labor dispute case resolved by the Ho Chi Minh City People’s Court, the court did not recognize the minutes of a meeting submitted by the defendant (the employer) as evidence. This was because the minutes lacked the employee’s signature verifying the accuracy of the content, thus lacking objectivity, and were merely a unilateral document from the employer.
Recorded Materials Must Have a Legitimate Source
Article 95, Clause 2 of the 2015 Civil Procedure Code states that evidence can include audio or visual materials if they are accompanied by a written statement from the person presenting the material regarding its origin, if they recorded it themselves, or a document confirming the origin of the material from the person who provided it to the presenter, or a document concerning the event related to the recording.
The requirement that recorded materials must have legitimate proof of origin and be verified by the parties before being accepted as evidence is based on several reasons related to the legality, objectivity, and reliability of evidence in litigation.
Without this provision, recording might infringe on personal privacy rights and violate the legal rights and interests of the parties involved. This rule helps prevent the use of illegal or non-transparent, unfairly collected recordings as evidence in litigation.
Audio and video recordings must also ensure they have not been edited, distorted, or tampered with and must reflect the objective truth.
In Judgment No. 02/2019/LĐ-PT dated July 22, 2019, the Tuyen Quang Provincial People’s Court did not recognize a USB containing a recorded conversation between the employee and the employer, submitted by the plaintiff (the employee) as evidence. The court ruled that the recording was illegally obtained, and no document was provided to show that the employer was aware of the recording or had consented to it.
Documents Submitted Must Be Legally Notarized and Certified
According to Article 95, Clause 1 of the 2015 Civil Procedure Code, readable documents are considered evidence if they are original copies or legally notarized and certified copies, or provided and verified by a competent authority or organization.
This means that written documents, in any readable form, are only recognized as evidence when they are either legally notarized or certified copies or when they are the original versions. Such notarized documents are used as evidence to protect the legal rights and interests of the parties involved.
Article 46 of the 2014 Law on Notarization (Law No. 53/2014/QH13) stipulates that the notary’s certification for contracts and transactions must clearly state the time and place of notarization, the full name of the notary, and the name of the notarial practice organization.
If the plaintiff submits evidence in the form of uncertified copies, these will be rejected. For instance, in Judgment No. 522/2019/LĐ-PT dated June 5, 2019, the Ho Chi Minh City People’s Court, during the appellate hearing, dismissed and refused to accept as evidence an internal work regulation that was submitted as a photocopy without proper certification, even though it had been accepted by the lower court.
In addition to various procedural violations by the lower court, the Ho Chi Minh City People’s Court ultimately decided to overturn the lower court’s judgment.
Recommendations
In practice, despite the regulations on rejecting inadmissible evidence—such as evidence collected illegally, lacking objectivity, or relevance—Vietnamese courts often still accept such documents without requiring the deletion of related content during the trial.
This issue partly arises because Vietnam currently has no explicit prohibition against using illegally obtained evidence, which may still be used as reference material. In many cases, such reference materials play a critical role in influencing the judgment, even though they might have been stolen, collected without the consent of the parties involved, or hacked.
After the dispute is resolved, the act of illegally collecting evidence may or may not be prosecuted as a separate matter and will not affect the validity of the evidence in the previous trial.
Of the considerations mentioned, Vietnam currently only rigorously enforces the requirement regarding the form of evidence submitted—specifically, that it must be an original document or a certified, notarized copy.
Other inadmissible evidence may still be discussed, referenced, or incorrectly accepted as evidence, as there is no law in Vietnam prohibiting the use of arguments based on such reference materials. In contrast, in other countries, such evidence would be deemed inadmissible and entirely removed from the court proceedings.
Due to these issues, parties in labor disputes must be particularly vigilant about the documents submitted and aggressively contest the opposing party’s use of inadmissible evidence obtained illegally. Documents, whether formally accepted or not, could potentially be used against your client in court.
It is also important to note that even discussions or settlement negotiations with the opposing party can be used as adverse evidence against your client. Therefore, when handling labor disputes, clients should consider engaging a reputable law firm specializing in labor law and dispute resolution to receive support throughout the trial process, particularly in the collection and submission of evidence, as well as in contesting inadmissible evidence.
ASL Law is a leading full-service and independent Vietnamese law firm made up of experienced and talented lawyers. ASL Law is ranked as the top tier Law Firm in Vietnam by Legal500, Asia Law, WTR, and Asia Business Law Journal. Based in both Hanoi and Ho Chi Minh City in Vietnam, the firm’s main purpose is to provide the most practical, efficient and lawful advice to its domestic and international clients. If we can be of assistance, please email to [email protected].
ASL LAW is the top-tier Vietnam law firm for litigation and dispute resolution. If you need any advice, please contact us for further information or collaboration.
