Shall an employee taking unpaid leave (unexcused leave) over the allowed days be fired?
What are the regulations on unpaid leave for employees in Vietnam?
Pursuant to the provisions of Article 115 of the Labor Code 2019 on unpaid leave asc follows:
Article 115. Personal leave, unpaid leave
1. An employee is entitled to take a fully paid personal leave in the following circumstances, at long at is notified to the employer in advance:
a) Marriage: 03 days;
b) Marriage of his/her biological child or adopted child: 01 day;
c) Death of his/her biological or adoptive parent; death of his/her spouse’s biological or adoptive parent; death of spouse, biological or adopted child: 03 days.
2. An employee is entitled to take 01 day of unpaid leave and must inform the employer in the case of the death of his/her grandparent or biological sibling; marriage of his/her parent or natural sibling.
3. The employee may negotiate with his/her employer on taking unpaid leave other than the leave stipulated in Clause 1 and Clause 2 of this Article.
Are employees with unpaid leave eligible to pay social insurance in Vietnam?
According to the provisions of Clause 2, Article 39 of the Law on Social Insurance 2014 as follows:
Article 39. Allowance levels of the maternity regime
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2. The maternity leave period of 14 working days or more in a month shall be regarded as a period of social insurance premium payment. During this period, employees and employers are not required to pay social insurance premiums.
And according to the provisions of Clause 4, Article 42 of Decision 595/QD-BHXH 2017 on Procedures for collection of social insurance contributions and premiums of health insurance, unemployment insurance, occupational accident and occupational disease insurance and application of social insurance books and health insurance cards shall be issued the regulations:
Article 42. Management of participants
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4. An employee who does not work or receive salary for at least 14 working days in a month is not required to pay social insurance contributions in this month. This period shall not be included in the payment period of social insurance contributions.
Based on the above provisions, employees take unpaid leave, but they still are paid social insurance premiums in the following two cases:
- Employees who take leave due to maternity;
- Employees who take leave over 14 days without the same month.
Shall an employee taking unpaid leave (unexcused leave) more than the days allowed be fired?
According to the provisions of Clause 1, Article 36 of the Labor Code 2019 as follows:
Article 36. 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, an employer shall have the right to unilaterally terminate an employment contract for case that the employee is not present at work without acceptable excuses for at least 05 consecutive working days.Therefore, if you take too many unpaid leave, your company have the right to unilaterally terminate an employment contract with you (also known as dismissal).
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