Vietnam: What are the obligations of employers upon illegal unilateral termination of employment contracts with employees?
- What are the obligations of employers in Vietnam upon illegal unilateral termination of employment contracts with employees?
- In what cases can employers in Vietnam unilaterally terminate employment contracts?
- Can employers in Vietnam unilaterally terminate employment contracts with pregnant female employees?
What are the obligations of employers in Vietnam upon illegal unilateral termination of employment contracts with employees?
Pursuant to Article 41 of the Labor Code 2019 as follows:
Obligations of the employer upon illegal unilateral termination of the employment contract
1. The employer that illegally unilaterally terminates an employment contract with an employee shall reinstate the employee in accordance with the original employment contract, and pay the salary, social insurance, health insurance and unemployment insurance premiums for the period during which the employee was not allowed to work, plus at least 02 months’ salary specified in the employment contract.
After the reinstatement, the employee must return the severance allowance or redundancy allowance (if any) to the employer.
Where there is no longer a vacancy for the position or work as agreed in the employment contract and the employee still wishes to work, the employer shall negotiate revisions to the employment contract.
Where the employer fails to comply with the provisions on notice period in Clause 2 Article 36 of this Labor Code, the employer shall pay a compensation that is worth the employee’s salary for the remaining notice period from the termination date.
2. In case the employee does not wish to return to work, in addition to the compensation prescribed in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 46 of this Code in order to terminate the employment contract.
3. Where the employer does not wish to reinstate the employee and the employee agrees, in addition to the compensation mentioned in Clause 1 of this Article and the severance allowance mentioned in Article 46 of this Labor Code, both parties shall negotiate an additional compensation which shall be at least 2 months’ salary under the employment contract in order to terminate the employment contract.
According to the above provisions, upon illegal unilateral termination of the employment contract, employers in Vietnam must reinstate employees in accordance with the concluded employment contracts, and pay salaries, social insurance, health insurance and unemployment insurance premiums for the period during which employees were not allowed to work, plus at least 02 months’ salary specified in employment contracts.
In what cases can employers in Vietnam unilaterally terminate employment contracts?
Pursuant to Article 36 of the Labor Code 2019 as follows:
The right of an employer to unilaterally terminate 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.
2. 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 employee in advance:
a) at least 45 days in case of an indefinite-term employment contract;
b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
c) 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;
d) The notice period in certain fields and jobs shall be specified by the government.
3. When unilaterally terminating the employment contract in the cases mentioned in Point d and Point e Clause 1 of this Article, the employer is not required to inform the employee in advance.
Thus, employers in Vietnam may unilaterally terminate employment contracts with employees in the above cases.
When unilaterally terminating employment contracts, employers must pay attention to the time of informing the employee in advance as prescribed above.
Can employers in Vietnam unilaterally terminate employment contracts with pregnant female employees?
Pursuant to Article 37 of the Labor Code 2019 as follows:
Cases in which an employer is prohibited from unilaterally terminating an employment contract
1. The employee is suffering from an illness or work accident, occupational disease and is being treated or nursed under the decision of a competent health institution, except for the cases stipulated in Point b Clause 1 Article 36 of this Labor Code.
2. The employee is on annual leave, personal leave, or any other types of leave permitted by the employer.
3. The employee is pregnant, on maternal leave or raising a child under 12 months of age.
Thus, employers can not unilaterally terminate employment contracts with pregnant female employees.
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