Last September, the Ho Chi Minh City People's Court heard the appeal of the case of "dispute over overtime wages" between the plaintiff, Mr. Vo Van Phuc (62 years old, residing in Go Vap District, Ho Chi Minh City) and the defendant, Binh Trieu Drug Addiction Counseling and Rehabilitation Center (headquartered in Binh Thanh District, Ho Chi Minh City, under the Department of Labor, Invalids and Social Affairs of Ho Chi Minh City).
The appellate court accepted Mr. Phuc's appeal request, forcing Binh Trieu Drug Addiction Counseling and Rehabilitation Center (referred to as the Center) to pay Mr. Phuc more than 136 million VND in overtime pay, paid in one lump sum immediately after the appellate judgment takes effect.
5-year journey to claim 40 months' salary
According to the first instance judgment, Mr. Phuc was an officer working at the reception office of the Facility.
Mr. Vo Van Phuc after retirement
The annual staff conference stipulates that employees will work 201 hours/month. However, Mr. Phuc stated that in reality, his monthly work schedule was always more than the prescribed number of hours. Despite his many complaints and comments, they were not considered, so in 2018, Mr. Phuc filed a lawsuit requesting the Facility to pay the difference in salary of 2,720 working hours (excluding rest time), equivalent to more than 136 million VND. This difference in hours was calculated by Mr. Phuc for 24/24 working days, but the Facility only paid 16 hours.
The facility presented that before February 2020, Mr. Phuc worked on a 24-hour rotating schedule, so if it fell on a Saturday or Sunday, he would still go to work, but it was calculated as working 16/24 hours, because the remaining 8 hours were spent sleeping and not performing duties.
The facility also stated that the number of overtime hours as prescribed must not exceed 300 hours/person/year. From July 2016 to February 2020, Mr. Phuc was given compensatory leave to ensure that the number of overtime hours did not exceed 25 hours/month, 300 hours/year.
The first instance judgment of the People's Court of Binh Thanh District did not accept Mr. Phuc's request to force the Facility to pay more than 136 million VND in unpaid overtime. Mr. Phuc then appealed.
Workers are paid more than 136 million VND
On September 18, at the appeal trial, the People's Court of Ho Chi Minh City accepted Mr. Phuc's appeal.
The appellate court determined that the annual resolution of the conference of civil servants, public employees, and workers approved the regulation that overtime hours shall not exceed 300 hours/year, overtime night work shall be counted if it exceeds 176 standard hours/month, and compensatory leave shall be arranged according to regulations.
“Mr. Phuc claimed that the Facility did not arrange for him to take enough compensatory leave, while scheduling him on too many shifts; the Facility claimed that Mr. Phuc did not register for compensatory leave, so the Facility did not arrange for him to take compensatory leave,” the appeal judgment stated.
From there, the People's Court of Ho Chi Minh City analyzed point c, clause 2, article 106 of the 2012 Labor Code (LLC) which stipulates that "after each period of overtime work for many consecutive days in a month, the employer must arrange for the employee to take compensatory leave for the time not taken off." Therefore, the Facility must arrange for Mr. Phuc to take compensatory leave, and the Facility's failure to arrange for Mr. Phuc to take compensatory leave is against the regulations.
In addition, according to the court, the Facility's self-calculation of the time "from 5:00 p.m. to 10:00 p.m. is counted as 4 hours, the time from 10:00 p.m. to 7:30 a.m. the next morning is counted as 4 hours" is contrary to Article 105 of the 2012 Labor Code which stipulates "night working hours are counted from 10:00 p.m. to 6:00 a.m. the next morning".
In addition, at court, the parties confirmed that Mr. Phuc worked overtime but was not scheduled for compensatory leave, so Mr. Phuc must be paid overtime according to the Labor Code, which is more than 145 million VND in the years 2017 - 2020.
However, Mr. Phuc only appealed to request the Facility to pay more than 136 million VND, so the appellate court accepted his appeal, forcing the Facility to pay Mr. Phuc more than 136 million VND in one payment immediately after the appellate judgment takes effect.
Currently, Binh Thanh District People's Court is also handling a dispute case about claiming wages for working at night and overtime between Ms. Nguyen Thi Hong Nhung and the Ho Chi Minh City Social Support Center.
According to Ms. Nhung, during the period of 2019 - 2021, the Center has not paid more than 41 million VND for overtime during the day exceeding the standard; more than 51 million VND for overtime at night exceeding the standard; more than 1.7 million VND for standard salary at night. Therefore, Ms. Nhung filed a lawsuit requesting the Center to pay.
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