Do Vietnamese employers have the right to unilaterally terminate the employment contract if the employee repeatedly fails to perform his/her work?
- Do Vietnamese employers have the right to unilaterally terminate the employment contract if the employee repeatedly fails to perform his/her work?
- Vietnam: When will the dismissal for disciplinary reasons be performed?
- Vietnam: Is it possible to dismiss inefficient employees at the end of the year to not pay Tet bonus 2023?
Do Vietnamese employers have the right to unilaterally terminate the employment contract if the employee repeatedly fails to perform his/her work?
Pursuant to Article 36 of the Labor Code 2019 stipulates as follows:
The right of an employer to unilaterally terminates the employment contract
1. An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:
a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);
b) The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.
Upon recovery, the employer may consider concluding another employment contract with the employee;
c) In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;
d) The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;
dd) The employee reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties;
e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;
g) The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labor Code in a manner that affects the recruitment.
Thus, the employer can unilaterally terminate the employment contract with the employee on the grounds that their work is not effective if the employee regularly fails to complete the work according to the defined employment contract. determined according to the criteria for assessing the level of job completion.
At the same time, when unilaterally terminating the employment contract in any of the cases specified in Point a, b, c, dd and g Clause 1 of this Article, the employer shall inform the employer in advance:
- at least 45 days in case of an indefinite-term employment contract;
- at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
- at least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases stipulated in Point b Clause 1 of this Article;
- The notice period in certain fields and jobs shall be specified by the government.
Do Vietnamese employers have the right to unilaterally terminate the employment contract if the employee repeatedly fails to perform his/her work?
Vietnam: When will the dismissal for disciplinary reasons be performed?
Pursuant to Article 125 of the Labor Code 2019, the following cases are applied:
Dismissal for disciplinary reasons
An employer may dismiss an employee for disciplinary reasons in the following circumstances:
1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.
4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Cases that are considered to have legitimate reasons include natural disasters, fires, themselves and their sick relatives certified by competent medical examination and treatment establishments and other cases specified in the internal labor regulations. motion.
When an employee has been disciplined in another form before, such as reprimand or prolongation of salary increase or dismissal, but continues to re-offend leading to continued disciplinary action when the discipline has not been cleared. At this point the employer can fire the job by firing the employee.
Vietnam: Is it possible to dismiss inefficient employees at the end of the year to not pay Tet bonus 2023?
For inefficient employees, the employer can dismiss the employee at any time of the year, as long as the provisions of the law on the reasons for and notice period are met.
In case the employer illegally unilaterally terminates an employment contract with an employee, based on Article 41 of the Labor Code 2019, the employer must:
- Pay the salary, social insurance, health insurance and unemployment insurance premiums for the period during which the employee was not allowed to work;
- Pay a compensation that is worth the employee’s salary for the remaining notice period from the termination date (in case of failing to comply with the provisions)
- Pay at least 02 months’ salary specified in the employment contract..
In case of dismissal, the employer must also ensure that they comply with the order, authority and disciplinary reasons as prescribed by the labor law. In case of illegal dismissal, the employer must also pay compensation like the case of illegal unilateral termination of the employment contract mentioned above.
At the same time, according to the provisions of Article 104 of the Labor Code 2019, employers are not required to give Tet bonuses to employees. The Tet bonus depends on the financial situation, the enterprise may decide to reward or not give Tet bonus in 2023 to employees.
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