19/04/2023 15:11

Will the employment contract be terminated when performing military service in Vietnam?

Will the employment contract be terminated when performing military service in Vietnam?

I just received a summons for military service. In this case, will my employment contract be terminated? “Ha Minh-Quang Ngai, Vietnam”

Hello, Lawnet would like to answer the following:

1. Will the employment contract be terminated when performing military service in Vietnam?

According to Article 30 of the Labor Code 2019, regulations on cases of suspension of an employment contract are as follows:

Article 30. Suspension of an employment contract

1. Cases of suspension of an employment contract:

a) The employee is conscripted into the army or militia;

b) The employee is held in custody or detention in accordance with the criminal procedure law;

c) The employee is sent to a reformatory school, drug rehabilitation center or correctional facility;

d) The female employee is pregnant as specified in Article 138 of this Code;

dd) The employee is designated as the executive of a wholly state-owned single-member limited liability company;

e) The employee is authorized to representative the state investment in another enterprise;

g) The employee is authorized to represent the enterprise’s investment in another enterprise;

h) Other circumstances as agreed by both parties.

2. During the suspension of the employment contract, the employee shall not receive the salary and benefits specified in the employment contract, unless otherwise agreed by both parties or prescribed by law.

In that case, the employee performing the military service has the obligation to join the militia and self-defense force and is subject to the case of temporary suspension of the performance of the labor contract as prescribed above.

Thus, in case you receive a summons to perform military service, the company has no right to terminate the labor contract with you, you will need to notify the company where you are working and proceed to implement the regulations on the temporary suspension of the performance of the labor contract.

In addition, during the period of suspension of the performance of the labor contract, you will not be entitled to the salary and rights and benefits signed in the contract.

2. Will it be guaranteed to have the old position back upon completing the military service?

According to Article 31 of the Labor Code 2019, the regulations on reinstatement of employees are as follows:

Article 31. Reinstatement of employees upon expiry of the temporary suspension of the employment contract

Within 15 days from the expiry of the suspension period of the employment contract, the employee shall be present at the workplace and the employer shall reinstate the employee under the employment contract if it is still unexpired, unless otherwise agreed by both parties or prescribed by law.

Thus, within 15 days from the expiry of the suspension period of the employment contract, the employee shall be present at the workplace and the employer shall reinstate the employee under the employment contract (if it is still unexpired).

However, the employee may be reassigned to a job other than the old one in cases specified in Article 29 of the Labor Code 2019:

- In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.

The employer shall specify in the internal labor regulations the cases in which the employer may temporary reassign employees against the employment contracts.

- In case of temporarily reassignment of an employee specified in Clause 1 of this Article, the employer shall inform the employee at least 03 working days in advance, specify the reassignment period and only assign works that are suitable for the employee’s health and gender.

- The reassigned employee will receive the salary of the new work. If the new salary is lower than the previous salary, the previous salary shall be maintained for 30 working days. The new salary shall be at least 85% of the previous salary and not smaller than the minimum wages.

Le Thi Phuong Ngan
190


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