What should employees do when the former company does not close the Social Insurance Book in Vietnam?

What should employees do when the former company does not close the Social Insurance Book in Vietnam? (Illustrative image)

Before looking into the ways employees can protect their rights, it is necessary to know who is responsible for finalizing the social insurance booklet for employees in Vietnam.

Based on Clause 3, Article 47 of the Labor Code 2012: “The employer is responsible for completing the procedures for certification and returning the social insurance booklet and other documents that the employer has kept of the employee.” This regulation remains unchanged when the Labor Code 2019 takes effect in Vietnam from 2021.

The Social Insurance Law 2014 further clarifies this regulation in Clause 5, Article 21, whereby the employer is responsible for cooperating with the social insurance agency to return the social insurance booklet to the employee, confirming the duration of social insurance contribution when the employee terminates the labor contract, work contract, or quits as per legal regulations in Vietnam.

Therefore, the responsibility to finalize the social insurance booklet lies with the employer. If the employer does not fulfill this responsibility, the employee has sufficient grounds to protect their rights through the following methods:

1. Filing a Complaint

According to Article 118 of the Social Insurance Law 2014, employees have the right to request competent authorities, organizations, individuals to review the decisions, actions of the employer when there are grounds to believe that these decisions, actions violate the law on social insurance, infringing upon their legal rights and interests.

This resolution can be done through the complaint procedure. Article 15 of Decree 24/2018/ND-CP outlines 02 complaint procedures:

- First-time Complaint: The authority to resolve the first-time complaint belongs to the employer. The complaint resolution period is from 30 to 60 days. If the employee disagrees with the resolution or if the complaint is not resolved within the specified time limit, the employee has the right to either file a lawsuit in court according to civil procedural procedures, or proceed with a second-time complaint.

- Second-time Complaint: The authority to resolve the second-time complaint belongs to the Chief Inspector of the Provincial Department of Labor, War Invalids and Social Affairs, where the employer is headquartered. The complaint resolution period is from 45 to 60 days. If the employee disagrees with the resolution or if the complaint is not resolved within the specified time, the employee has the right to file a lawsuit in court according to administrative procedural procedures.

2. Filing a Lawsuit in Court

Most individual labor disputes must go through mediation procedures by a labor mediator before requesting the court’s resolution. However, in the case of social insurance disputes, mediation is not required beforehand. Therefore, employees only need to file a lawsuit in court conformable with the prescribed procedures for the case to be accepted.

- In case of filing a civil lawsuit, the employee has the right to file a lawsuit when:

- There are grounds to believe that the decisions, actions of the employer; organizations, individuals participating in vocational education activities; businesses, public service organizations, sending Vietnamese employees to work abroad under a contract are illegal, directly infringing upon their legal rights and interests;- Disagreeing with the resolution of the first-time complaint;- The time limit for resolving the first-time complaint has expired and the complaint has not been resolved.

- In case of filing an administrative lawsuit, the following conditions are required:

- Disagreeing with the resolution of the second-time complaint;- The time limit for resolving the second-time complaint has expired and the complaint has not been resolved.

3. Requesting the Labor Arbitration Council to Resolve in Vietnam

Starting from January 1, 2021, the Labor Code 2019 introduces an additional method for resolving labor disputes, which is through the Labor Arbitration Council.

The resolution period: no more than 30 days. If this time limit expires without a decision from the Council, the parties have the right to request court resolution.

Note: When requesting the Labor Arbitration Council to resolve disputes, the parties cannot simultaneously request court resolution.

Additionally, to limit this situation, the Government of Vietnam issued Decree 28/2020/ND-CP on administrative penalties in the field of labor. The fine for failing to finalize the social insurance booklet for employees ranges from 2,000,000 VND to 4,000,000 VND per employee, but the maximum fine does not exceed 75,000,000 VND for the employer. The authority to impose fines belongs to Inspectors, Chief Inspectors of the Department of Labor, or Chief Inspectors of the Ministry of Labor.

Thus, to protect their rights, employees can follow the above 03 methods when the former company does not finalize the social insurance booklet.

Phuong Thanh

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