Is “Serving the Employer’s Commercial Interest” a Duty of the Employee?

One expectation when recruiting an employee is to hire someone to faithfully serve the business of the employer and to assist in the development of the business.  Clearly, this is an important consideration for the employer when entering into a labor contract.

If so, when an employee refuses to comply with the employer’s requirements (within the scope of business development purposes), such as requiring the employee to do jobs not described in the labor contract or to work overtime, then would the employee be considered to be in breach of the contract for causing interruption to the employer’s business (i.e. the employer’s purpose for entering into the labor contract has been prevented)?

In other nations around the world, the duty of complying with an employer’s reasonable requirements and assuring there is no interruption in the employer’s business are recognized as “implied duties” of an employee, despite these duties not being clearly stated in the labor contract.  Accordingly, in many countries the implied duties of an employee are to serve the employer faithfully and to promote the employer’s commercial interests.  An employee could legally be considered in breach of the labor contract if they violate these implied duties.

In Vietnam, the duty of being faithful to the employer and serving the employer’s interests are clearly stated in the provisions of the enterprise law concerning the duties of the enterprise’s managers (Director, General Director, Chairman[1], etc.).  However, with regard to the labor laws, the regulations concerning implied duty are very limited.  For example, pursuant to Article 5.2.(b) of the 2012 Labor Code, the employee has a duty of “complying with the employer’s lawful administration”; Article 6.1.(a) of the 2012 Labor Code, allows the employer to “manage employees according to the demands of production and business”.  Therefore, the question is to what extent does the employer have the right to require the employee to perform jobs in accordance with the demands of production and business.

Under normal circumstances, in order to determine the extent of an employee’s duty, the content of the labor contract is the primary reference point. However, the difficulty is that in many cases, the labor contract does not contain such detailed job descriptions or, if any, the descriptions are very general and simple.

A typical example is a labor contract that only describes an employee’s job as a “lecturer”, or only provides a basic requirement of performing “lecturing work”. It follows that if “lecturing” is interpreted in its narrowest sense (i.e. only as class lecturing), would the employer have the right to require the employee to perform any jobs other than “lecturing” (e.g. test preparation, lesson preparation, test marking, etc.), which are inherent duties but are not clearly stated in the labor contract?

From a common sense viewpoint concerning the work of lecturing, it cannot be denied that the incidental but necessary duties of test preparation, lesson preparation, and test marking, etc. should be interpreted as being within a lecturer’s scope of work. Therefore, although not stated in the labor contract, the position of lecturer still requires the employee to perform jobs such as test preparation, lesson preparation, test marking, etc. Consequently, the employee has the duty of performing jobs other than the main job of “lecturing”, to fulfill the job objectives under the labor contract.

If it is assumed that the employee has the right to refuse performing any task other than “lecturing” (in its narrowest sense), would the employee breach his implied duty, i.e. the duty of serving the employer’s business interests?

To answer this question, it is necessary to specify the employee’s reason for refusing to perform the job.  Assuming that the employee’s refusal to perform work is a result of the employer requesting the employee to perform these tasks outside of working hours and therefore affecting the employee’s family life, the employee shall be fully justified and not be considered in breach of his/her implied duties.

However, if the employee refuses to perform a task with precise knowledge that their refusal will cause interruption to the employer’s business, or if the employee refuses to perform tasks that deliberately cause interruption to the employer’s business (e.g. failure to prepare lectures or grade papers), then such employee’s refusal can be considered as a breach of his/her implied duties. This also means a breach of the labor contract, because on the basis of his/her implied duties, an employee has to take appropriate actions to prevent interruption to the employer’s business.

Another matter worth considering is, in the event the employee refuses to perform the required tasks which are implied in the job description, whether the employer has the right to deduct a part of employee’s salary corresponding with the duties that have been breached?

Pursuant to Vietnam labor laws, the employer may justifiably not pay salary to the employee if such refusal to perform jobs is considered an action constituting a strike.  However, it is very difficult to conclude that the employee has “gone on strike” in these cases.  Therefore, if there is no standard for evaluation of job completion at the time of recruitment, there is no legal basis to support the employer’s refusal to pay salary due to the conduct of the employee.

With the knowledge that Vietnam laws are still limited in regulations relating to “implied duty” and are more inclined to protecting the employee’s interests, the most feasible solution for the employer is to have a set of labor documentation (labor contract, collective labor agreement, labor rules, etc.) thoroughly prepared with as much detail as possible. This documentation should especially concentrate on rules and wording concerning job descriptions, labor norms, and standards for evaluating job completion, so as to specify an employee’s “implied duties”.

[1] Articles 71, 83, 96, 160 etc. of the 2014 Law on Enterprise.

This insight is quoted from the Vietnam Labor Law Review (February – March 2018), you can download and read the full file of Vietnam Labor Law Review (February – March 2018) here

Author: Stephen Le 

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