What Are the “Benefits” for Employees When Unilaterally Terminated?

In the case you inquire, Kiemsat.vn responds as follows:

Firstly, regarding whether the company's termination of your employment is a violation of the law:

Clause 10, Article 36 of the Labor Code 2012 stipulates that one of the cases of labor contract termination is: "The employer unilaterally terminates the labor contract according to the provisions of Article 38 of this Code; the employer terminates the labor contract due to changes in structure, technology, or for economic reasons, or due to the merger, consolidation, division, or separation of enterprises, cooperatives."

In the case where the employer terminates the employee's employment, this termination must arise from reasons of changes in structure, technology, or for economic reasons. According to the guidance in Article 13 of Decree 05/2015/ND-CP dated January 12, 2015, detailing and guiding certain contents of the Labor Code, the employer terminates the employment of the employee due to changes in the structure, technology, or for economic reasons as follows:

“Structural and technological changes under Clause 1, Article 44 of the Labor Code include the following cases:

a) Organizational structure changes, labor restructuring;

b) Changes in products, product structure;

c) Changes in processes, technology, machinery, production, and business equipment associated with the production and business sectors of the employer.

Economic reasons under Clause 2, Article 44 of the Labor Code include one of the following cases:

a) Economic crisis or recession;

b) Implementation of State policies during economic restructuring or implementation of international commitments.

In case structural changes, technology, or economic reasons affect employment or there is a risk of job loss, and it is necessary to terminate the employment of two or more employees, the employer must fulfill obligations according to the provisions of Article 44 of the Labor Code.”

Thus, apart from the reason for terminating the employment of the employee being among the above cases, the employer's termination is considered lawful if the reason results in terminating the employment of two or more employees. If only you are terminated by the company for the reason of "not having a vehicle," the company's action in this case does not comply with the legal regulations on labor contract termination according to the provisions of Article 36 of the Labor Code. Therefore, this is considered as the employer unilaterally terminating the labor contract with the employee.

The labor contract signed between you and the company is a fixed-term labor contract, so the company's unilateral termination of the contract with you must comply with the provisions of Article 38 of the Labor Code. Among the cases where the employer has the right to unilaterally terminate the contract stipulated in Clause 1 of this Article is the case: "Due to natural disasters, fires, or other force majeure reasons as prescribed by law, where the employer has tried all remedial measures but still has to narrow production and reduce jobs."

According to the guidance in Clause 2, Article 12 of Decree No. 05/2015/ND-CP dated January 12, 2015, detailing and guiding certain contents of the Labor Code, force majeure reasons are: disasters, epidemics; relocation or narrowing of production or business locations at the request of competent state agencies. Thus, the reason of "not having a vehicle" given by the company to terminate the labor contract with you is not appropriate under the provisions of Article 38 of the Labor Code.

Additionally, according to the provisions at point a, Clause 2, Article 38 of the Labor Code, when unilaterally terminating a fixed-term labor contract, the employer must notify the employee at least 45 days in advance. Therefore, your company also violates the regulations on the notice period for terminating the labor contract with the employee.

Therefore, according to the provisions of Article 41 of the Labor Code, the company's unilateral termination of the labor contract is unlawful, and the company must fulfill the obligations prescribed in Article 42 of the Labor Code:

“Article 42. Obligations of the employer when unilaterally terminating the labor contract illegally:

1. Must reinstate the employee to the agreed labor contract position and pay wages, social insurance, and health insurance for the days the employee did not work plus at least 02 months' salary as stated in the labor contract.

2. If the employee does not want to continue working, in addition to the compensation provided for in Clause 1 of this Article, the employer must pay severance according to the provisions of Article 48 of this Code.

3. If the employer does not want to reinstate the employee and the employee agrees, in addition to the compensation provided for in Clause 1 of this Article and severance under the provisions of Article 48 of this Code, the parties shall agree on additional compensation, but it must be at least 02 months' salary as stated in the labor contract to terminate the labor contract.

4. If there is no longer the position or job specified in the labor contract and the employee still wants to work, then apart from the compensation provided for in Clause 1 of this Article, the parties shall negotiate to amend and supplement the labor contract.

5. If the violation is related to the notice period, compensation must be paid to the employee equal to the salary for the days not notified.”

Thus, depending on the agreement and negotiation between you and the company regarding whether to continue working or not, the company will resolve your benefits in each specific case as prescribed above.

According to Kiem Sat Online

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