In case of illegal unilateral termination of employment contracts in Vietnam, can employees close social insurance books?
- In case of illegal unilateral termination of employment contracts in Vietnam, can employees close social insurance books?
- How much is the enterprise fined for failing to close the social insurance books for employees?
- In case of enterprises in arrears on insurance contributions, can employees close social insurance books in Vietnam?
In case of illegal unilateral termination of employment contracts in Vietnam, can employees close social insurance books?
Enterprises must have responsibilities towards employees after terminating the contract according to Clause 3, Article 48 of the 2019 Labor Code of Vietnam as follows:
- Complete the procedures for verification of duration of participation in social insurance and unemployment insurance, return them and original copies of the employee’s other documents.
- Provide copies of the documents relevant to the employee’s work if requested by the employee. The employer shall pay the cost of copying and sending the documents.
Thus, according to the above provisions, if the employee unilaterally terminates the employment contract illegally, the enterprise has the responsibility to complete the procedures for verification of duration of participation in social insurance and unemployment insurance, return them and original copies of the employee’s other documents.
In case of illegal unilateral termination of employment contracts in Vietnam, can employees close social insurance books? (Image from the Internet)
How much is the enterprise fined for failing to close the social insurance books for employees?
The administrative penalties imposed upon enterprises for failing to close the social insurance books for employees is specified in Clause 2, Article 12 of Decree No. 12/2022/ND-CP as follows:
Violations against regulations on modification, revision and termination of employment contracts
…
2. The following fines shall be imposed upon an employer for commission of one of the following violations: Changing the term of an employment contract using its annex; failing to comply with regulations on time limits for settling all payments in respect of the rights and interests of employees when terminating the employment contracts; failing to pay or insufficiently paying severance allowances to employees in accordance with regulations of law; failing to pay or insufficiently paying redundancy allowances to employees in accordance with regulations of law; failing to make or insufficiently making the prescribed payments to employees when unilaterally terminating their employment contracts in breach of law; failing to complete procedures for certification of duration of participation in social insurance and unemployment insurance, and return the certification and original copies of other documents to employees after terminating their employment contracts in accordance with regulations of law; failing to provide copies of the documents relevant to the employee’s working period if requested by the employee after terminating his/her employment contract:
a) A fine ranging from VND 1.000.000 to VND 2.000.000 shall be imposed if the violation involves 01 - 10 employees;
b) A fine ranging from VND 2.000.000 to VND 5.000.000 shall be imposed if the violation involves 11 - 50 employees;
c) A fine ranging from VND 5.000.000 to VND 10.000.000 shall be imposed if the violation involves 51 - 100 employees;
d) A fine ranging from VND 10.000.000 to VND 15.000.000 shall be imposed if the violation involves 101 - 300 employees;
dd) A fine ranging from VND 15.000.000 to VND 20.000.000 shall be imposed if the violation involves 301 employees or more.
Thus, according to the above regulations, the fine imposed upon enterprises that fail to complete the procedures for closing the social insurance books for employees will depend on the number of employees who have not yet closed the social insurance books.
* Note: The above fines are imposed on individuals; the fines incurred by an organization are twice as much as that incurred by an individual for the same administrative violation.
Thus, we will base on the number of violated employees to determine the appropriate fine according to the above provisions.
In addition, Clause 4, Article 12 of Decree No. 12/2022/ND-CP stipulates remedial measures for failing to close the social insurance books for employees:
- The employer is compelled to complete procedures for certification and return documents, which have been kept by the employer, to employees in case of failing to complete procedures for certification of duration of participation in social insurance and unemployment insurance, and return the certification and original copies of other documents to employees after terminating their employment contracts.
In case of enterprises in arrears on insurance contributions, can employees close social insurance books in Vietnam?
Article 46 Procedures for collection of social insurance contributions and premiums of health insurance, unemployment insurance, occupational accident and occupational disease insurance; management of social insurance books and health insurance cards issued together with Decision No. 595/QD-BHXH as amended and supplemented by Clause 72, Article 1 of Decision No. 505/QD-BHXH in 2020 as follows:
Contents of social insurance books and combined social insurance books in Vietnam
Contents of a social insurance book and the combined social insurance book held by a person possessing at least 2 social insurance books shall be managed under Article 33b.
1. Representation and confirmation of the social insurance, HI, unemployment insurance and OADI contribution period in a social insurance book
1.1. Contents of a social insurance book must be adequate in each corresponding stage in proportion to the contribution amount and working conditions of the social insurance, HI, unemployment insurance and OADI participant (even when he/she does not work and receive wages for at least 14 working days in a month due to his/her leave for enjoyment of sickness, maternity or paternity insurance benefits; his/her non-paid leave; temporary suspension of his/her labor contract).
1.2. As regards a unit in arrears on insurance contributions, if an employee is eligible to receive social insurance benefits or terminates the labor or employment contract, the unit shall pay insurance contributions in full, including late payment interest, in accordance with regulations, and the social security agency shall confirm his/her social insurance book to promptly pay social insurance and unemployment insurance benefits to him/her.
If the unit has not yet paid in full, confirmation of the social insurance book till the date of payment of insurance contributions shall be given. After successfully recovering insurance contributions in arrears, the additional confirmation shall be given on the social insurance book.
Thus, employees are still entitled to close the social insurance book as regards the enterprise in arrears on insurance contributions, however, only close the book until the time the enterprise has paid social insurance contributions for the employee. After successfully recovering insurance contributions in arrears, the additional confirmation shall be given on the social insurance book.
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