What are regulations on the right to terminate the labor contract when employees in Vietnam are eligible for pension?

1. The documents guiding the implementation of the 2014 Social Insurance Law, including Decree 115/2015/ND-CP dated November 11, 2015, detailing some articles of the Social Insurance Law and compulsory social insurance; Circular No. 59/2015/TT-BLDTBXH dated December 29, 2015, detailing and guiding the implementation of some articles of the Social Insurance Law and compulsory social insurance all guide that the retirement age in this case is 55 years old (male) and 50 years old (female).

2. As long as the employee works in heavy, hazardous, or dangerous jobs in Vietnam and reaches the minimum age for retirement (55 years old for males; 50 years old for females) and meets the conditions for the duration of paying social insurance, your company has the right to terminate the labor contract without needing an agreement with the employee (according to Clause 4, Article 36; Clause 2, Article 187, Labor Code 2012; Point b, Clause 1, Article 54, Social Insurance Law 2014).

3. Conditions for terminating the labor contract for employees working in heavy, hazardous, and dangerous jobs (2 conditions):

   a) First condition: The employee has paid social insurance for 20 years or more.

   b) Second condition:

   + Male employees from 55 to 60 years old, female employees from 50 to 55 years old; and

   + Employees have 15 years doing heavy, hazardous, dangerous jobs.

4. When terminating the labor contract, your company must ensure compliance with the employer's responsibilities as stipulated in Article 47, Labor Code 2012;

5. If the employee continues to work after the age prescribed in Article 187, Labor Code 2012, they will be considered elderly workers. According to Article 167, Labor Code 2012, if there is a need, the employer can agree with elderly employees who have adequate health to extend the working time or sign a new labor contract. However, the employer is not allowed to use elderly workers for heavy, hazardous, or dangerous jobs that negatively affect the health of the elderly worker...

I read in the Labor Code 2012 that the right to unilaterally terminate a labor contract by the employer with detailed contents is only stipulated in Article 38, otherwise, it will be an illegal unilateral termination of the labor contract (Article 41).

My question is: Is the right to terminate the labor contract according to the lawyer's advice above conformable to the law? If correct, how are the employee’s rights protected by law in this case?

If incorrect, is this an illegal unilateral termination of the labor contract?

If unilaterally terminated as above, what should the employee in Vietnam do to protect themselves? Which agency should they go to for their rights to be protected?

As this issue affects hundreds of employees, I look forward to an early response from your agency.

On this issue, the Ministry of Labor – War Invalids and Social Affairs responds as follows:

a) According to Clause 4, Article 36 of the Labor Code 2012, the labor contract terminates when the employee meets the conditions for the duration of paying social insurance and the retirement age as stipulated in Article 187 of the Labor Code.

b) According to Clauses 1 and 2, Article 187 of the Labor Code, employees who meet the conditions on the duration of paying social insurance as per the social insurance law are entitled to a pension when males are 60 years old and females are 55 years old. For employees doing especially heavy, hazardous, dangerous jobs; doing heavy, hazardous, dangerous jobs on the list prescribed by the Government, they can retire at an age lower than the stipulated age (under 60 for males, 55 for females).

c) According to Point b, Clause 1, Article 54 of the Social Insurance Law, male employees from 55 years old to under 60 years old, female employees from 50 years old to under 55 years old who have paid social insurance for 20 years and have worked 15 years in heavy, hazardous, dangerous or especially heavy, hazardous, dangerous jobs on the list issued by the Ministry of Labor - War Invalids and Social Affairs and the Ministry of Health, or have worked for 15 years in an area with a regional allowance coefficient of 0.7 or more, are eligible to retire with a pension.

d) According to Article 47 of the Labor Code 2012, within 7 working days from the date of termination of the labor contract, both parties must fully settle the relevant benefits; in special cases, it can be extended but not exceed 30 days. The employer is responsible for completing the procedures for confirming and returning the social insurance book and other documents retained by the employer to the employee.

Thus, for male employees from 55 years old to under 60 years old, female employees from 50 years old to under 55 years old who have paid social insurance for 20 years and worked 15 years in heavy, hazardous, dangerous, or especially heavy, hazardous, dangerous jobs on the list issued by the Ministry of Labor - War Invalids and Social Affairs and the Ministry of Health, or worked 15 years in an area with a regional allowance coefficient of 0.7 or more, are eligible to retire with a pension and fall under the case of labor contract termination as per Clause 4, Article 36 of the Labor Code. When terminating the labor contract, the employer and employee must comply with the provisions in Article 47 of the Labor Code.

According to the Ministry of Labor - War Invalids and Social Affairs

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