Hanoi-Vietnam: Termination of employment contract during the pregnant period of female employees

Reply:

Firstly: Termination of employment contract for pregnant women

Clause 3, Article 39 of the Labor Code 2012 stipulates: "Article 39. Cases in which the employer is not allowed to unilaterally terminate the employment contract. 3. Female employees specified in Clause 3, Article 155 of this Code."

Clause 3, Article 155 of the Labor Code 2012 stipulates:

"3. An employer may neither dismiss a female employee nor unilaterally terminate the employment contract with a female employee for the reason of her marriage, pregnancy, maternity leave, or that she is nursing a child under 12 months of age, except the case in which the employer is an individual who dies or is declared by a court to have lost his/her civil act capacity, or to be missing or dead, or the employer is an institution that ceases operation."

Thus, the employer is not allowed to unilaterally terminate the employment contract with a female employee for reasons of marriage, pregnancy, maternity leave, or raising children under 12 months old, except as stipulated by law.

If you disagree with the decision to unilaterally terminate the employment contract, you have the right to file a complaint with the employer, and if not satisfied, you may file a second complaint with the district-level Department of Labor, War Invalids, and Social Affairs or initiate a lawsuit in court as stipulated in Point a, Clause 1, Article 201 of the Labor Code 2012:

"1. Individual labor disputes must go through the conciliation conducted by labor conciliators before going to a court for settlement, except the following labor disputes:

a) Disputes over disciplinary measures of dismissal or unilateral termination of employment contract;"

Secondly: The responsibilities of the employer when illegally unilaterally terminating the employment contract

If the employer illegally unilaterally terminates the employment contract, it must bear responsibilities as stipulated in Article 42 of the Labor Code 2012:

"1. To reinstate the employee in accordance with the original employment contract; to pay the wage and social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least 2 months’ wage in accordance with the employment contract.

2. In case the employee does not wish to return to work, in addition to the compensation stipulated in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 48 of this Code.

3. In case the employer does not want to reinstate the employee and the employee agrees, in addition to the compensation stipulated in Clause 1 of this Article and the severance allowance stipulated in Article 48 of this Code, the two parties shall negotiate on an additional compensation which must be at least equal to 2 months’ wage in accordance with the employment contract in order to terminate the employment contract.

4. In case the position or job agreed in the employment contract is no longer vacant and the employee still wishes to work, the employer shall pay the compensation stipulated in Clause 1 of this Article and both parties shall negotiate to modify and supplement the employment contract.

5. If violating the provision on the time of prior notice, the employer shall compensate the employee an amount equivalent to his/her wage for the working days without prior notice."

According to Labor Newspaper

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