CAN THE COMPANY RECEIVE THE SAME WORK ON RETURN FROM MILITARY SERVICE?

Mr. Ng.Long asked ATN LEGAL the following questions:

“I’m about to go to military service for 2 years and previously signed a labor contract with company A. After 3 months of working, I was called up to serve, will I be able to work again at my old position in the future?”

ATN LEGAL Please answer as follows:

Clause 1, Article 30 of the 2019 Labor Code stipulates the temporary suspension of labor contracts as follows:

Temporarily postpone implementation of labor contract
1. Cases of temporary suspension of labor contracts include:
a) Employees performing military service or participating in the Militia and Self-Defense Force;
b) Employees detained or temporarily detained according to the provisions of law on criminal proceedings;
c) The employee must comply with the decision to apply the measure of sending to a reformatory, a compulsory detoxification facility or a compulsory education facility;
d) Pregnant female employees as prescribed in Article 138 of this Code;
d) The employee is appointed as a business manager of a one-member limited liability company of which 100% of the charter capital is held by the State;
e) Employees are authorized to exercise the rights and responsibilities of the representative of the state owner for the state capital in the enterprise;
g) Employees are authorized to exercise the rights and responsibilities of the enterprise with respect to the enterprise’s capital invested in another enterprise;
h) Other cases agreed upon by both parties.

Thus, if the employee goes to military service, the contract will be temporarily postponed.

Will he be given the same job after returning from military service?

Clause 3, Article 8 of Decree 27/2016/ND-CP stipulates a number of regimes and policies for non-commissioned officers and soldiers serving on active duty, demobilized and relatives of non-commissioned officers and soldiers on active duty, regulations on training, vocational training, and employment settlement upon demobilization as follows:

Training, vocational training, and job placement upon discharge from the military
1. Non-commissioned officers and soldiers who are studying or have a call to study at schools belonging to vocational education establishments or higher education establishments before enlistment will have their results reserved and be accepted to study at those schools.
In the case of non-commissioned officers and soldiers who have completed their active duty service, and upon demobilization, if they need vocational training and are eligible for vocational training support, they will receive vocational training support according to the provisions of Decree No. 61/2015/ND-CP dated July 9, 2015 of the Government stipulating policies to support job creation and the National Employment Fund.
2. Non-commissioned officers and soldiers who were working in state agencies, political organizations, or socio-political organizations before enlistment, when demobilized, that agency or organization must be responsible for receiving them back, arranging jobs, and ensuring their income is not lower than before enlistment; In case that agency or organization has been dissolved, the immediate superior agency or organization is responsible for arranging suitable jobs. In case the immediate superior agency or organization has been dissolved or there is no immediate superior agency or organization, the Department of Labor, War Invalids and Social Affairs is responsible for presiding and coordinating with relevant state agencies at the same level to resolve employment.
3. Non-commissioned officers and soldiers who were working at an economic organization before enlistment, when demobilized, that organization must be responsible for receiving, arranging jobs and ensuring salaries and wages commensurate with the job position and salaries and wages before enlistment; In case an economic organization has terminated its operations, dissolved or gone bankrupt, the settlement of regimes and policies for demobilized non-commissioned officers and soldiers shall be implemented as for employees of that economic organization according to the provisions of current law on social insurance; The local Social Insurance agency where the above economic organization pays social insurance is responsible for paying social insurance according to current regulations.

Thus, when the employee returns from military service (demobilized), he/she will still be given a job. At the same time, the company will be responsible for receiving back and ensuring salaries and wages commensurate with the job position and salary and wages before the employee enlists.

How many days must a demobilized employee be present at the workplace after the expiration of the suspension period?

In Article 31 of the 2019 Labor Code, there are regulations on reintroducing workers who have expired their labor contracts as follows:

Receiving the employee after the period of temporary suspension of performance of the labor contract

Within 15 days from the date of expiration of the temporary suspension of the implementation of the labor contract, the employee must be present at the workplace and the employer must receive the employee back to do the job according to the signed labor contract if the labor contract is still valid, unless the two parties have agreed or the law allows other regulations.

Thus, after demobilization, the employee must be present at the workplace within 15 days from the end of the temporary suspension period to accept the job (in case the labor contract is still valid), unless the employee and the employer have a different agreement or the law has other provisions.

If you have further questions, please contact ANT Legal for in-depth answers.

Best regards!