Legalizing the unilateral termination of the employment contract with male employees raising a child under 12 months of age in Vietnam

Pursuant to Article 122 of the Labor Code 2019 of Vietnam, principles and procedures for taking disciplinary measures at work are prescribed as follows:

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

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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."

Thus, according to this Article, employers cannot take disciplinary measure against employees raising a child under 12 months of age. Moreover, there is absolutely no distinction between men and women, so that male employees who are raising children under 12 months old are not disciplined.

At the same time, pursuant to Article 37 of the 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."

Thus, employers also cannot unilaterally terminate the employment contract with male employees raising a child under 12 months of age.

In terms of trial practice, we have just obtained one judgment which has the contents of discipline and unilaterally termination to the employment contract with male employees raising a child under 12 months of age. Specifically, Judgment No. 01/2021/LD-PT has the following contents:

"Mr. T is an employee of the Register Center 82.01S. During his work, Mr. T made mistakes in the registrations of cars. Mr. T did not comply with the executive instructions of his superiors, made recommendations and calls to superior agencies which 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 45-day work suspension for Mr. T from November 19, 2018. On January 21, 2019, the Register Center issued a Decision to discipline Mr. T with warning measure, and at the same time issued a Notice of termination of the employment contract with Mr. T. Disagreeing with the unilateral termination of the employment contract, Mr. T sued a lawsuit to request the Court to settle: Forcing the Register Center to take him back to work...

The Trial Panel stated that:

To the content that Mr. T is in the period of raising a child under 12 months of age so that employers cannot unilaterally terminate the labor contract, the Trial 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, it is found that Mr. Nguyen Duc T's lawsuit claim has no basis to accept."

It can be seen that, according to the above Judgment, the People's Court of Kon Tum province based on the fact that Mr. T is not the only member of the family who is directly raising a child under 12 months of age. Thus, the Court cannot apply Article 37 and Article 122 of the Labor Code 2019 to determine that the Register Center 82.01S disciplined or unilaterally terminated the employment contract with Mr. T illegally.

Therefore, the law on labor of Vietnam prescribes not to discipline and unilaterally terminate the employment contract with male employees raising a child under 12 months of age. While in trial practice, the People's Court of Kon Tum province did not automatically apply this provision, but considered whether Mr. T is the only member of the family who is directly raising the child.

Considering that, in this case, there is still a gap between legal regulations and trial practice. It is necessary to have guiding documents for the uniform application of the law.

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