07/10/2022 08:23

Is it possible to unilaterally terminate labor contracts with male employees raising children under 12 months old in Vietnam?

Is it possible to unilaterally terminate labor contracts with male employees raising children under 12 months old in Vietnam?

I would like to ask if Vietnamese law allows disciplinary action and unilateral termination of labor contracts for male employees who are raising children under 12 months old? And how to deal with this in practice?

- According to the provisions of Article 122 of the Labor Code 2019, the principles of labor discipline are prescribed as follows:

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

...

2. It is prohibited to impose more than one disciplinary measure for one violation of internal labor regulations.

3. Where an employee commits multiple violations of internal labor regulations, he/she shall be subjected to the heaviest disciplinary measure for the most serious violation.

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.

5. No disciplinary measure shall be taken against an employee who commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control.”

Therefore, the employer is not allowed to take disciplinary action against the employee who is raising children under 12 months. And in this regulation, there is absolutely no distinction between men and women, so male employees raising children under 12 months old are not disciplined.

Moreover, Article 37 of the Labor Code 2019  also has the following provisions:

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.

Therefore, the employer is also not allowed to unilaterally terminate the labour contract for male employees raising children under 12 months old.

- In terms of trial practice, at present, we have only obtained a judgment with the content of disciplinary action and unilateral termination of labor contracts for male employees raising children under 12 months of age. Specifically, Judgment No.  01/2021/LD-PT has the following contents:

“Mr T is an employee of the Registration Center 82.01S. During his work, Mr. T made mistakes in vehicle registration which did not comply with the executive instructions of his superiors, made recommendations or made calls to superior agencies that did not follow the principles, rules and regulations of the unit, affecting the reputation of the unit. Therefore, the Director of Registration Center 82.01S signed the Decision on the suspension of work for him, the 45-day suspension period from November 19, 2018. On January 21, 2019, the Registry Center decided to discipline Mr. T with a warning discipline, and at the same time, a Notice of termination of the employment contract for Mr. T. Disagreeing with the unilateral termination of the labor contract, Mr. T filed a lawsuit to request the Court to settle: Forcing the Registration Center to accept him back to work...

The trial panel stated:

For the content that Mr. T is in the period of raising a child under 12 months old, so he cannot unilaterally terminate the labour contract, the panel finds 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… From the above analysis, Mr. Nguyen Duc T's petition to sue is unfounded.”

It can be seen that, according to the above judgment, the People's Court of Kon Tum province has based on the fact that Mr. T is not the only member of the family who is directly raising a child under 12 months old, so Article 37 and Article 122 of the Labor Code 2019 should not be applied to determine that the 82.01S Registration Center is illegal to discipline and terminate the labor contract for Mr. T.

In conclusion, the labour law stipulates that it is not allowed to discipline and unilaterally terminate the labour contract for male employees raising children under 12 months old, but in practice, the People's Court of Kon Tum province said: This regulation does not automatically apply, but considers whether this male worker is the only member of the family who is directly raising children or not.

Considering that there is still a gap between legal regulations and adjudication practice. It is necessary to have a guiding document for the uniform application of the law.

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE

Sang Nguyen
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