Vietnam: What is the penalty imposed on employers reassigning employees to perform works which are not specified in their employment contracts?
What are the works of employees stated in employment contracts in Vietnam?
According to Article 21 of the Labor Code 2019 on the contents of employment contracts in Vietnam as follows:
Contents of employment contracts
1. An employment contract shall have the following major contents:
a) The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;
b) Full name, date of birth, gender, residence, identity card number or passport number of the person who concludes the contract on the employee’s side;
c) The job and workplace;
d) Duration of the employment contract;
dd) Job- or position-based salary, form of salary payment, due date for payment of salary, allowances and other additional payments;
e) Regimes for promotion and pay rise;
g) Working hours, rest periods;
h) Personal protective equipment for the employee;
i) Social insurance, health insurance and unemployment insurance;
k) Basic training and advanced training, occupational skill development.
Thus, one of the contents of employment contracts is works to be completed by employees.
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According to Clause 3, Article 3 of Circular 10/2020/TT-BLDTBXH guiding the implementation of a number of articles of the Labor Code, the regulations on jobs and workplace are as follows:
Major contents of an employment contract
3. Jobs and workplace:
a) Jobs: jobs that the employee has to perform;
b) Workplace: location and scope that the employee will perform the job as agreed; if the employee perform the job on a regular basis in varied locations, specify them.
Thus, when concluding employment contracts, employees shall be informed works to be completed by them.
In case employers reassign employees to perform works that are not specified in their employment contracts, do they have the right to unilaterally terminate employment contracts in Vietnam?
After concluding employment contracts, employees perform works according to the concluded employment contracts. Article 28 of the Labor Code 2019 provides for the performance of works under an employment contract as follows:
Performance of works under an employment contract
The works under an employment contract shall be performed by the employee who directly enters into the contract. The workplace shall be consistent with that indicated in the employment contract, unless otherwise agreed upon by both parties.
Thus, works of employees will follow the employment contracts. In case of other agreements, the parties may perform works other than works under concluded employment contracts.
According to Clause 2, Article 35 of the Labor Code 2019 on the right of an employee to unilaterally terminates the employment contract as follows:
The right of an employee to unilaterally terminates the employment contract
2. An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:
a) is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labor Code;
b) is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.
c) is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity or honor; is forced to work against his/her will;
d) is sexually harassed in the workplace;
dd) is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.
e) reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or
g) finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.
According to Article 29 of the Labor Code 2019 on reassignment of an employee against the employment contract as follows:
Reassignment of an employee against the employment contract
1. In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.
The employer shall specify in the internal labor regulations the cases in which the employer may temporary reassign employees against the employment contracts.
2. In case of temporarily reassignment of an employee specified in Clause 1 of this Article, the employer shall inform the employee at least 03 working days in advance, specify the reassignment period and only assign works that are suitable for the employee’s health and gender.
3. The reassigned employee will receive the salary of the new work. If the new salary is lower than the previous salary, the previous salary shall be maintained for 30 working days. The new salary shall be at least 85% of the previous salary and not smaller than the minimum wages.
4. In case the employee refuses to be reassigned for more than 60 working days in 01 year and has to suspend the employment, he/she shall receive the suspension pay from the employer in accordance with Article 99 of this Labor Code.
Thus, in case the enterprise operates normally, but the employer arbitrarily reassigns the employee to perform works that are not specified in their employment contracts, the employee has the right to unilaterally terminate the employment contract.
In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract, the employee is not allowed to unilaterally terminate the employment contract.
What is the penalty imposed on employers reassigning employees to perform works which are not specified in their employment contracts in Vietnam?
According to Point c, Clause 2, Article 11 of Decree 12/2022/ND-CP as follows:
Violations against regulations on performance of employment contracts
2. A fine ranging from VND 3.000.000 to VND 7.000.000 shall be imposed upon an employer for commission of one of the following violations:
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c) Reassigning employees to perform works which are not specified in their employment contracts for improper reasons or for incorrect periods, or without written consent from employees as prescribed by law.
Thus, in case employers reassign employees to perform works that are not specified in their employment contracts for improper reasons or for incorrect periods, or without written consent from employees as prescribed by law may face administrative penalties from VND 3,000,000 to VND 7,000,000.
Note: The above fine is imposed on individuals. For organizations, the fine shall be doubled.
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