Shall Vietnamese female employees be reinstated to her previous work after the maternity leave? What are the penalties for unilaterally terminating the employment contract with female employees due to their maternity leave?
- Shall Vietnamese female employees be reinstated to her previous work after the maternity leave?
- Are enterprises allowed to unilaterally terminate employment contracts with Vietnamese female employees for the reason of pregnancy?
- What are the penalties for employers for unilaterally terminating the employment contract with female employees due to their maternity leave?
Shall Vietnamese female employees be reinstated to her previous work after the maternity leave?
According to the provisions of Article 140 of the Labor Code 2019, it is stipulated as follows:
Employment security for employees after maternity
An employee shall be reinstated to his/her previous work when he/she returns to work after the maternity leave prescribed in Clauses 1, 3 and 5 Article 139 of this Labor Code without any reduction in his/her salary, rights and benefits before the leave. In case the previous work is no longer available, the employer must assign another work to the employee with a salary not lower than the salary he/she received prior to the maternity leave.
Thus, a female employee shall be reinstated to her previous work when she returns to work after the maternity leave.
In addition, employees will not have their salaries, rights and benefits reduced compared to before maternity leave; In case the previous work is no longer available, the employer must assign another work to the employee with a salary not lower than the salary she received prior to the maternity leave.
Shall Vietnamese female employees be reinstated to her previous work after the maternity leave?
Are enterprises allowed to unilaterally terminate employment contracts with Vietnamese female employees for the reason of pregnancy?
According to Clause 3, Article 137 of the Labor Code 2019, regulations on maternity protection are as follows:
Maternity protection
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2. Whenever an employer is informed of the pregnancy of an female employee who is doing a laborious, toxic or dangerous work, a highly laborious, toxic or dangerous work or any work that might negatively affect her maternity, the employer shall assign her to a less laborious or safer work, or reduce the working hours by 01 hour per day without reducing her salary, rights or benefits until her child reaches 12 months of age.
3. The employer must not dismiss an employee or unilaterally terminate the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operation, declared by a provincial business registration authority that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations.
Upon expiration of the employment contract with female employee who is pregnant or nursing a child under 12 months of age, conclusion of a new employment contract shall be given priority.
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Thus, according to the above regulations, enterprises are not allowed to fire or unilaterally terminate labor contracts with employees for reasons of marriage, pregnancy, maternity leave, or raising children under 12 months of age, except In case the employer who is an individual dies, is declared by the Court to have lost civil act capacity, is missing or dead, or the employer who is not an individual terminates its operations or is terminated by a specialized agency. The Department of Business Registration under the Provincial People's Committee issued a notice that there is no legal representative or person authorized to exercise the rights and obligations of the legal representative.
What are the penalties for employers for unilaterally terminating the employment contract with female employees due to their maternity leave?
At Point i, Clause 2, Article 28, Decree 12/2022/ND-CP regulates the act of firing, or unilaterally terminating labor contracts for employees due to marriage, pregnancy, or maternity leave. or raising children under 12 months old as follows:
Violations against regulations on female employees and assurance of gender equality
2. A fine ranging from VND 10.000.000 to VND 20.000.000 shall be imposed upon an employer for commission of one of the following violations:
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h) Taking disciplinary measures against a female employee during her pregnancy or maternity leave in accordance with regulations of laws on social insurance; taking disciplinary measures against a female employee who is nursing a child under 12 months of age;
i) Dismissing or unilaterally terminating the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing of a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operations, declared by a business registration authority affiliated to the provincial People’s Committee that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations, if not liable to criminal prosecution;
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3. Remedial measures
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c) The employer that commits the violation specified in Point i Clause 2 of this Article is compelled to reinstate employees.
Thus, according to regulations, the employers will be fined from 10,000,000 to 20,000,000 in cases of unilaterally terminating the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing of a child under 12 months of age.
In addition, employers are compelled to reinstate employees specified in Point i, Clause 2, Article 28 of Decree 12/2022/ND-CP.
* Note: The penalty level specified in Clause 2, Article 28 of Decree 12/2022/ND-CP is the penalty level for individuals. The penalty level for organizations is 2 times the penalty level for individuals.
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