Is an employee who does not want to return to work required to repay the severance allowance?
Based on Clause 1 and Clause 2 of Article 41 of the 2019 Labor Code, the obligations of the employer when unilaterally terminating the labor contract illegally are stipulated as follows:
- The employer must reinstate the employee to work according to the signed labor contract; must pay wages, contribute social insurance, health insurance, and unemployment insurance during the days the employee is not allowed to work and must additionally pay the employee an amount at least equal to 02 months of wages according to the labor contract.
After being reinstated, the employee must return the severance allowance, job loss allowance if received from the employer.
In case there is no position or job as agreed in the labor contract and the employee still wants to work, both parties should agree to amend and supplement the labor contract.
In case of violation of the notice period as prescribed in Clause 2, Article 36 of this Code, a sum equivalent to the wages according to the labor contract for the days without prior notice must be paid.
- If the employee does not want to continue working, in addition to the amount payable as specified in Clause 1 of this Article, the employer must pay severance allowance as stipulated in Article 46 of this Code to terminate the labor contract.
Therefore, in the case you mentioned, although your employee does not wish to continue working when your company unilaterally terminates the contract, you still must pay the severance allowance (if they meet the conditions). Please base your actions on this regulation to comply correctly.
Respectfully!
