23/06/2022 17:27

04 judgments on termination of contracts with employees raising children under 12 months old in Vietnam

04 judgments on termination of contracts with employees raising children under 12 months old in Vietnam

The employer can unilaterally terminate the labor contract or dismiss the employee in many different cases. However, can the employer dismiss or terminate labor contract for the employee who is raising a child under 12 months old in Vietnam?

According to the provisions of Article 37 of Vietnam's Labor Code 2019:

"Article 37. 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."

"Article 122. Principles and procedures for taking disciplinary measures at work

 

...

4. No disciplinary measure shall be taken against an employee during the period when:

a) The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;

b) The employee is being held under temporary custody or detention;

c) The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of this Labor Code;

d) The employee is pregnant, on maternal leave or raising a child under 12 months of age."

According to the current labor law, the employer is not allowed to take labor discipline or unilaterally terminate the labor contract for the employee who is raising a child under 12 months old. However, how are the actual cases handled by the court? You can refer to some of the following judgments for more information:

1. Judgment No. 08/2016/LD-PT on dispute over labor discipline in the form of dismissal 

- Quoting the content: "Ms. A joined the company on July 17, 2006, and signed an indefinite-term labor contract. Before taking maternity leave, Ms. A worked as an accountant and office treasurer with a salary of 20,393,000 VND/month. In June 2014, Ms. A took maternity leave, so the company recruited a new accountant to replace her. The new accountant discovered that Ms. A had made some accounting errors. Therefore, when Ms. A came back to work on December 30, 2014, the General Director of the Company issued a decision 008-14 to transfer Ms. A to work as an accountant in another department from January 5, 2015, but Ms. A did not agree. and voluntarily left. After Ms. A complained, the company canceled the decision to transfer 008-14, issued a decision 008-15 on January 6, 2015 to arrange for Ms. A to be a statistical accountant, but Ms. A did not return to work. The company sent 3 notices asking Ms. A to come and receive the decision and work, but Ms. A did not come and continued to rest. On March 20, 2015, the company held a meeting to handle labor discipline and fired Ms. A with the excuse of voluntarily leaving work for 5 days without a valid reason.

- Results of settlement: "The People's Court of Hai Phong City announced that it partially accepted the plaintiff's claim: It was illegal to declare that Company I's dismissal of employee discipline against Ms. A was illegal. Forcing Company I to: pay Ms. A the salary for the days when she cannot work, plus 02 months' salary: 469,039,000 VND; pay Ms. A a severance allowance of VND 25,491,250 with the A total of 494,530,250 VND."

2. Judgment No. 862/2017/LD-ST on dispute over unilateral termination of labor contract 

- Quoting the content: "The plaintiff works as a lawyer, this is a full-time job, so according to the provisions of the Labor Code 2012, at least the defendant must sign a 1-year labor contract with the plaintiff. but the fact that the defendant only signed a 10-month labor contract is against the law. It is also against the law to let the plaintiff quit while raising a child under 12 months old. Therefore, Ms. Viviane C requested HL Vietnam to be responsible for compensating her once as soon as the judgment takes effect, the amount of VND 146,880,000 due to the termination of the labor contract on April 30, 2016. .

- Result of settlement: “Accepting part of plaintiff's lawsuit claim. Forcing the defendant, H.L Law Firm, to pay the plaintiff Ms. Viviane C 12 days' salary for the unpaid leave under the Labor Contract of VND 4,080,000. Recognizing the willingness of H.L Law Firm to agree to support Ms. Viviane C with an amount of VND 20,400,000, equivalent to 2 months' salary.

3. Judgment No. 01/2021/LD-PT on dispute over unilateral termination of labor contract 

- Quoting the content: "Considering that while working at the Registration Center, Mr. T had committed a violation of not complying with the management of the unit's leaders in the registration of motor vehicles as cars, 29A-83791 dated November 2, 2018; then there were the acts of calling the leaders of the upper management agencies, which violated the organizational principles; Seeing that the Registration Center works on 01 chain system, including many stages to inspect each motor vehicle, failure to comply with the management of an individual's manager can lead to shutting down the entire chain, affecting the revenue of the unit as well as the income of all employees in the unit, affecting the activities of other individuals and transport enterprises; Mr. T's violation was considered serious and should be disciplined in the highest form, which is dismissal according to the labor regulations of the Registry Center. However, Mr. T is raising a child under 12 months old, so he cannot unilaterally terminate the labor contract. Then it came to light that Mr. T is not the only member of the family who is directly raising the child. Therefore, there is no basis to accept this request.

- Result of settlement: The court declared not to accept the petition of plaintiff Mr. Nguyen Duc T.

4. Judgment No. 06/2020/LD-PT on dispute over labor contract 

- Quote from the content: "During my maternity leave, I was called by Mrs. H1 to instruct me to write an application for unpaid leave in April 2016. At the end of April 2016, I went to meet the station manager, Mr. Luu Anh T., and asked to come back to work. Mr. T said that the labor contract was signed incorrectly, the Internal Affairs Department and the Finance Department did not have a budget, and the radio no longer needed staff, so I was out of work. I wrote a letter expressing my desire to continue working because I had signed an indefinite-term labor contract. I always completed the assigned tasks during my work and did not make any mistakes, but Mr. T accepted the application without going to the agency to proceed. He did not let me go back to work, so I proposed that he give me a decision to quit, but Mr. T did not do it. I disagree with being terminated orally while raising my child, I have written many times to the relevant departments but it has not been completely resolved for me. "

- Result of settlement: The People's Court of Dak Lak province announced that it partially accepted her petition.

 

Nguyen Sang
149


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