Q&A about labor law No. (02)

To help readers understand more about Labor Law and issues related to Labor Law, ANT Legal specifically answers questions related to Labor Law as follows:

Answer No. 02:

When unilaterally terminating a labor contract, does the employer have to notify the employee in advance?

a) The employer must notify the employee in advance within the following time limit:

– At least 45 days for indefinite-term labor contracts;

– At least 30 days for a fixed-term labor contract with a term from 12 months to 36 months;

– At least 03 working days for fixed-term labor contracts with a term of less than 12 months and in cases where the employee has been treated for illness or accident beyond the period prescribed by the labor law but has not recovered his or her ability to work.

b) When unilaterally terminating the labor contract in the following cases, the employer is not required to notify the employee in advance:

– The employee is not present at the workplace after 15 days from the expiration date of the temporary suspension of the labor contract.

– The employee voluntarily quits his job without a legitimate reason for 5 consecutive working days or more.

(Clause 2 and 3 Article 36 of the Labor Code No. 45/2019/QH14)

Within 14 working days from the date of termination of the labor contract, fully pay all amounts related to the employer’s benefits.

a) Must notify the employee in writing about the termination of the labor contract, except in some cases prescribed by labor law.

b) Within 14 working days from the date of termination of the labor contract, fully pay all amounts related to the employee’s rights.

In the following cases, the payment time may be extended but must not exceed 30 days:

– The employer is not an individual terminating operations;

– The employer changes structure, technology or for economic reasons;

– Division, separation, consolidation, merger; selling, leasing, converting business types; transfer of ownership and rights to use assets of enterprises and cooperatives;

– Due to natural disasters, fires, enemy attacks or dangerous epidemics.

c) Complete the procedure to confirm the time of payment of social insurance and unemployment insurance and return it along with the originals of other documents, if kept by the employee;

d) Provide copies of documents related to the employee’s work history if the employee requests. The cost of copying and sending documents is paid by the employer.

(Clause 1 Article 45, Clause 1 and Clause 3, Article 48 of Labor Code No. 45/2019/QH14)

What responsibilities does the employee have when terminating the labor contract?

Within 14 working days from the date of termination of the labor contract labor contract, full payment of amounts related to the employer’s benefits.

(Clause 1, Article 48 of Labor Code No. 45/2019/QH14)

When terminating the labor contract, how are employees entitled to severance pay and job loss allowance?

1) When the labor contract is terminated according to regulations, the employer is responsible for paying severance benefits to employees who have worked regularly for 12 months or more. Each year of employment is subsidized with half a month’s salary, except in the following cases:

– Foreign workers working in Vietnam are deported according to court judgments or decisions that have taken legal effect, or decisions of competent state agencies;

– Employees are disciplined and dismissed;

– Work permit expires for foreign workers working in Vietnam according to regulations;

– In case the probation agreement is written in the labor contract but the probation is not met or one party cancels the probation agreement;

– Eligible to receive pension according to the provisions of law on social insurance;

– Employees voluntarily quit their job without a legitimate reason for 5 consecutive working days or more.

– Employees who quit their jobs are eligible to receive unemployment benefits from their employers.

2) Working time to calculate severance pay is the total time the employee has actually worked for the employer minus the time the employee has participated in unemployment insurance and the working time for which the employer has paid severance pay and redundancy pay.

3) The salary used to calculate severance pay is the average salary of the 6 consecutive months under the labor contract before the employee quits his job.

4) When dismissing employees in case of structural or technological changes or for economic reasons, when dividing, separating, consolidating or merging; selling, leasing, converting business types; transfer of ownership and rights to use assets of enterprises and cooperatives; Employers are responsible for paying unemployment benefits to employees who have worked regularly for 12 months or more. For each year of employment, they will receive one month’s salary, at least equal to 2 months’ salary.

(Article 46, Article 47 of Labor Code No. 45/2019/QH14)

Employers may not exercise the right to unilaterally terminate labor contracts In what case?

The employer may not exercise the right to unilaterally terminate the labor contract in the following cases:

1) The employee is sick or has an accident or occupational disease and is receiving treatment or nursing as prescribed by a competent medical examination and treatment facility, except in cases where the employee has a sickness or accident and has been treated beyond the time limit prescribed by the labor law but has not recovered his or her ability to work.

2) Employees are on annual leave, personal leave and other leaves agreed to by the employer.

3) Pregnant female workers; Employees on maternity leave or raising children under 12 months old.

(Article 37 of Labor Code No. 45/2019/QH14)

When unilaterally terminating labor contract illegal, what obligations must the employer fulfill towards the employee?

1) Must accept the employee back to work according to the concluded labor contract; Must pay salary, social insurance, health insurance, unemployment insurance during the days the employee is not allowed to work and must pay the employee an additional amount of money at least equal to 02 months’ salary according to the labor contract.

After being reinstated, the employee reimburses the employer for severance pay and job loss benefits, if received from the employer.

In case there is no longer a position or job agreed upon in the labor contract but the employee still wants to work, the two parties will agree to amend and supplement the labor contract.

In case of violation of the provisions on the notice period as prescribed, an amount corresponding to the salary according to the labor contract for the days without notice must be paid.

2) In case the employee does not want to continue working, in addition to the amount payable above, the employer must pay severance pay to terminate the labor contract.

3) In case the employer does not want to take back the employee and the employee agrees, in addition to the amounts the employer must pay mentioned above, the employer and employee agree on an additional compensation amount for the employee but at least equal to 02 months’ salary according to the labor contract to terminate the labor contract.

(Article 41 of Labor Code No. 45/2019/QH14)