07/10/2022 15:27

Vietnam: What is the maximum number of unpaid leaves can an employee take?

Vietnam: What is the maximum number of unpaid leaves can an employee take?

Hello Lawnet, I have a question: Because of my family's personal business, I asked the company to take a week off. However, because I have already used all of the annual leave, I would like to take an unpaid leave. However, the company made it difficult for me to take leave. Therefore, I would like to know, according to the law, how many unpaid leaves are employees allowed to take? What will happen if I still take leave even though the company does not let me? (Mr. Khoa – HCMC, Vietnam)

Thank you for your question, Lawnet shall answer as follows:

Article 115 of Vietnam's Labor Code 2019 stipulates:

"Article 115. Personal leave, unpaid leave

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.

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.

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."

Thus, according to the law, employees are automatically allowed to take one day of unpaid leave in the event of the death of their grandfather, grandmother, brother, sister, or younger brother; married parent; brother, sister, or sibling getting married; and when taking leave, they must notify the employer.

In other cases, or if you want to take more than one day off, the two parties can agree with each other. The current law does not stipulate the maximum period of unpaid leave, so as long as the employee and the employer can reach an agreement, the employee can take an unlimited number of days off. If the employer does not agree, the employee is not allowed to voluntarily leave.

If the Company does not allow the leave and you still take leave on your own, you may bear the following risks:

- The employer may unilaterally terminates the contract:

Article 36 of the Labor Code stipulates:

An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:

...

e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

- Apply disciplinary sanctions of dismissal

Article 125 of the Labor Code provides:

"An employer may dismiss an employee for disciplinary reasons in the following circumstances:

The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses. "

Cases that are considered to have legitimate reasons include natural disasters, fires, sick individuals and relatives certified by competent medical examination and treatment establishments, and other cases specified in labor regulations.

Because we do not know exactly what the reason for your leave is, but if you voluntarily quit your job without the consent of the employer for more than 05 working days without the legitimate reasons mentioned above, you will be considered to be voluntarily quitting the job. At this point, the company has the right to terminate the employment contract with you in accordance with the law.

In addition, the law also has other provisions to ensure the rights of employees to take unpaid leave.

Clause 1, Article 18 of Decree 12/2022/ND-CP stipulates:

A fine ranging from VND 2,000,000 to VND 5,000,000 shall be imposed on the employer that commits the following acts: failing to guarantee the employee's personal leave or unpaid leave as prescribed by law.

Therefore, if you really need to leave for a legitimate reason, you should negotiate with the company; otherwise, you should not voluntarily leave without the consent of the company.

Best regards!

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE

Phuong Uyen
78


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