Is it possible to unilaterally terminate the labor contract with a pregnant person and a person on maternity leave?

Is it possible to unilaterally terminate the labor contract during maternity leave?

Ms. Lien’s question sent to ANT Legal is as follows:“I entered into a labor contract with x LLC. After working for 6 months, I became pregnant. The company unilaterally terminated the labor contract with me due to health reasons and ineffective work during pregnancy… so is the company following the law?”

ANT Legal would like to answer your questions as follows:

Pursuant to Clause 1, Article 36 of the 2019 Labor Code stipulates:

The employer’s right to unilaterally terminate the labor contract

1. The employer has the right to unilaterally terminate the labor contract in the following cases:

a) Employees who regularly fail to complete work according to the labor contract are determined according to the criteria for evaluating the level of work completion in the employer’s regulations. Regulations on evaluating the level of job completion are issued by the employer but must consult with the employee representative organization at the facility for places where there is a representative organization of employees at the facility;

b) The employee is sick or has an accident and has been treated for 12 consecutive months for those working under an indefinite-term labor contract or has been treated for 06 consecutive months for those working under a fixed-term labor contract with a term of 12 to 36 months or more than half the term of the labor contract for those working under a fixed-term labor contract with a term of less than 12 months but the ability to work has not recovered.

When the employee’s health recovers, the employer will consider continuing to enter into a labor contract with the employee;

c) Due to natural disasters, fires, dangerous epidemics, enemy sabotage, or relocation or contraction of production or business at the request of a competent state authority, the employer has sought all remedial measures but is still forced to reduce the workplace;

d) The employee is not present at the workplace after the deadline specified in Article 31 of this Code;

dd) The employee reaches the retirement age as prescribed in Article 169 of this Code, unless otherwise agreed;

e) The employee voluntarily quits his job without a legitimate reason within 05 working days continuously or more;

g) The employee provides dishonest information as prescribed in Clause 2, Article 16 of this Code when entering into a labor contract, affecting the recruitment of the employee.

…

And according to Clause 3, Article 137 of the 2019 Labor Code, it is stipulated as follows:

Pregnancy protection product

…

3. The employer is not allowed to fire or unilaterally terminate the labor contract with the employee for reasons of marriage, pregnancy, maternity leave, or raising a child under 12 months of age, except in cases where the employer is an individual who dies, is declared by the Court to have lost civil act capacity, is missing or dead, or the employer is not an individual who terminates operations or is notified by the specialized business registration authority of the Provincial People’s Committee that there is no representative. According to the law, the authorized person shall exercise the rights and obligations of the legal representative.

In case the labor contract expires while the female employee is pregnant or raising a child under 12 months old, priority will be given to entering into a new labor contract.

…

Thus, employers are not allowed to fire or unilaterally terminate the labor contract of an employee due to pregnancy or maternity leave.

You have the right to sue to reclaim your legitimate rights. If you have any difficulties or need assistance, contact us for more in-depth advice. Best regards!