So if an employee has an occupational accident, how will their relatives be compensated by the employer?
Specifically, in the appellate labor judgment 07/2020/LD-PT dated December 8, 2020 on the dispute over compensation for damage caused by occupational accidents leading to death, the summary content is as follows:
“Mr. Tran Van T is a worker of V Metal Recycling Company Limited (Company V). At 13.00 on October 28, 2019, while working, Mr. T climbed an unburnt brick wall adjacent to the company's factory wall made of tole to rearrange the electrical wires into the insulating pipe and fixed the wire to the metal trough above leading down to the power junction boxes of the smelter. At 16.30 on the same day, Mr. T fell from the wall onto the concrete floor above the smelter, causing unconsciousness, severe head injuries and bleeding, the co-workers took him to the hospital but died.
After the incident happened, Company V agreed to compensate for damage to Mr. T's wife and children.On March 4, 2020, Company V and Ms. T (who is Mr. T's wife) made a record of agreement on compensation for damage in the occupational accident as follows:
- The funeral cost for Mr. T is 56,576,000 VND.
- Company V opens a bank account in the name of their son, Tran Nguyen Da T2, with an amount of VND 150,000,000 (the initial agreement is VND 200,000,000). T2 will have the full right to decide the amount in the account when he is 18 years old. Company V has full control over this amount until T2 reaches 18 years old, Mrs. Nguyen Thi Ngoc T (who is Mr. T's wife) commits not to interfere and use the money mentioned above.
- The company pays monthly living expenses of VND 4,000,000 until T2 reaches 22 years old (VND 16,000,000 has been assigned); the company that pays all study expenses for T2 until the end of school has spent 7,695,000 VND).
However, by March 2020, the company did not pay as promised, so Ms. T filed a lawsuit to ask the company to compensate for the damage as agreed. Company V does not accept and thinks that Ms. T's lawsuit against the Court is a violation of the agreement. Therefore, the company does not agree to compensate Ms. T and has a counterclaim against her."
In the first-instance judgment, the Court ruled to accept Ms. T's claim for compensation for damage caused by a fatal occupational accident against company V.
At the appellate trial, the People's Court of Long An province accepted the compensation agreement of the two sides and asked Company V to compensate Ms. T and T2's grandson according to the agreement.
When an employee has an accident and dies while working in accordance with the provisions of Article 12 of Decree 45/2013/ND-CP, the employer will compensate according to the provisions of Clause 4, Article 38 of the Law on Occupational Safety and Hygiene 2015 of Vietnam:
Article 38. Responsibilities of employers towards employees suffering from occupational accidents or diseases
4. The employer shall pay compensation for the employee suffering from occupational accident that is not entirely his/her fault and the employee suffering occupational disease as follows:
a) At least 1.5 months’ salary for the employee whose working capacity decrease is between 5% and 10%; 0.4 month’s salary shall be add for each additional 1% working capacity decrease regarding the employee whose working capacity decrease is between 11% and 80% ;
b) At least 30 months’ salary for the employee working capacity decrease is at least 81% or for the employee’s relatives if the employee dies from an occupational accident or an occupational disease;…”
In the above-mentioned labor judgment, company V has agreed to compensate Mr. T's wife and children (who died due to a work accident) Mrs. T and grandson T2 in the form of opening an account for T2's grandchild and assigning the right to decide the amount in the account for T2 when he is 18 years old, besides paying all of T2's study expenses until he stops studying and at the same time compensate Mr. T's funeral expenses. The payment of compensation in the form mentioned above is not at all contrary to the provisions of law and is considered reasonable and reasonable because the amount of compensation is used for good purposes and can partially compensate the families of the workers who have the accident.
Besides, if the employee participates in compulsory social insurance, in addition to the compensation that the company is responsible for paying, the relatives of the employee who dies due to a labor accident are also entitled to the social insurance agency. The association pays the following allowances:
- One-time allowance upon the death of the employee specified in Clause 1, Article 53 of the Law on Occupational Safety and Health 2015:
"Article 53. Benefit upon death due to occupational accidents or occupational diseases
If an employee dies from an occupational accident or an occupational disease, his/her relatives shall be entitled to a lump-sum benefit which is thirty-six times more than the basic salary determined in the month in which he/she dies and enjoy survivor benefits as prescribed in Law on Social insurance if the employee is in one of the following cases:
1. The employee dies from an occupational accident or an occupational disease;..."
- Funeral allowance according to the provisions of Article 66 of the Law on Social Insurance 2014 of Vietnam as follows:
Article 66. Funeral allowance
"1. When the following persons die, the persons who take charge of their funeral are entitled to a lump-sum funeral allowance:
b/ Employees who die of a labor accident or an occupational disease or die during treatment due to a labor accident or an occupational disease;...
2. The funeral allowance must equal 10 times the basic salary of the month when the persons defined in Clause 1 of this Article die.”
- Monthly survivorship allowance or lump-sum survivorship allowance:
Relatives of employees falling into the cases specified in Article 67 of the Law on Social Insurance 2014 are entitled to a monthly survivorship allowance equal to 50% of the base salary; In case the relative has no one to directly take care of, the monthly survivorship allowance is equal to 70% of the base salary.
In case an employee dies due to a labor accident without a relative who is entitled to monthly survivorship allowance as prescribed or has a relative who is eligible for monthly survivorship allowance but wishes to enjoy a lump-sum survivorship allowance (except for children under 06 years old, children or spouses with a working capacity decrease of 81% or more) will be entitled to a lump-sum survivorship allowance based on the number of years of paying social insurance premiums, but not less than 03 months the average monthly salary on which social insurance premiums are based.
In conclusion, when an employee dies from a fatal occupational accident, the family and relatives of the employee need to understand their rights and negotiate with the employer to be compensated for damage in accordance with the provisions of the law. From there, avoid the situation because of lack of understanding of the law that ignores their legitimate rights and interests.