Currently, there are numerous cases where enterprises take advantage of the vulnerability of employees to unilaterally terminate labor contract illegally in Vietnam. To protect employees, the Labor Code 2019 specifically stipulates five benefits that employees are entitled to when their labor contracts are unilaterally terminated unlawfully.
Article table of contents
5 Employee Rights When Companies Unilaterally Terminate Labor Contracts Illegally from 2021 in Vietnam (Illustrative photo)
According to the regulations in Article 39 of the Labor Code 2019 (which will be effective from January 1, 2021), the employer in Vietnam unilaterally terminates the labor contract illegally when:
- It does not fall under one of the following cases where the employer has the right to unilaterally terminate the contract:
+ The employee frequently fails to complete the work according to the labor contract as determined by the employer's evaluation criteria in their working regulations;
+ The employee has been sick or injured and has been under treatment for 12 continuous months for those working under an indefinite-term labor contract, or has been under treatment for 06 continuous months for those working under a fixed-term labor contract from 12 months to 36 months, or more than half the contract period for those working under a labor contract with a term of less than 12 months and the labor capacity has not yet recovered;
+ Due to natural disasters, fire, dangerous pandemics, enemy actions or relocation, reduction in production, and business at the request of the competent state authority, the employer has tried all measures to overcome but still has to reduce jobs;
+ The employee does not show up at the workplace after 15 days from the date the suspension period ends;
+ The employee reaches the retirement age as prescribed;
+ The employee voluntarily quits without a legitimate reason for 05 continuous working days or more;
+ The employee dishonestly provides information about their name, date of birth, gender, residence, educational level, professional skills, health status, and other issues directly related to the labor contract when concluding the labor contract affecting the recruitment of the worker.
- Not notifying according to the notice period regulations as follows:
+ At least 45 days for an indefinite-term labor contract;
+ At least 30 days for a fixed-term labor contract from 12 months to 36 months;
+ At least 03 working days for a fixed-term labor contract of less than 12 months and for the case where the employee has been under treatment for 12 continuous months and the labor capacity has not yet recovered;
- Unilaterally terminating the labor contract in the following cases:
+ The employee is sick or has an accident, occupational disease, and is under treatment, convalescence as prescribed by the competent health facility;
+ The employee is on annual leave, personal leave, and other cases where the employer agrees;
+ The female employee is pregnant, the employee is on maternity leave, or nursing a child under 12 months of age.
Therefore, according to the above regulations, if the employer unilaterally terminates the labor contract with the employee under the above circumstances, the employer has unilaterally terminated the labor contract illegally. Therefore, according to the regulations in Article 41 of the Labor Code 2019, the employer must bear the following 05 obligations when unilaterally terminating the labor contract illegally:
First: In case the employee wishes to return to work, the employer must accept the employee back according to the concluded labor contract and must pay wages, social insurance, health insurance, unemployment insurance for the missed working days and must pay an additional amount of at least 02 months' salary according to the labor contract.
Second: In case the employee wishes to return to work but the position or job concluded in the labor contract is no longer available and the employee still wants to work, both parties shall negotiate to amend and supplement the labor contract.
Third: In case the employer violates the notice period regulations, the employer must pay an amount equivalent to the salary according to the labor contract for the unnotified days.
Fourth: In case the employee does not want to continue working, in addition to the wages, social insurance, health insurance, unemployment insurance payments for the missed working days, and an additional amount of at least 02 months' salary according to the labor contract, the employer must pay severance pay according to the average salary of the 06 most recent consecutive months to terminate the labor contract.
Fifth: In case the employer does not want to accept the employee back and the employee agrees, in addition to the wages, social insurance, health insurance, unemployment insurance payments for the missed working days, and an additional amount of at least 02 months' salary according to the labor contract, the employer must also pay severance pay according to the average salary of the 06 most recent consecutive months, both parties shall negotiate additional compensation for the employee, but at least an amount equal to 02 months' salary according to the labor contract to terminate the labor contract.
Thus, these are the 05 benefits employees are entitled to when the employer unilaterally terminates the labor contract illegally from January 1, 2021 (the effective date of the Labor Code 2019). Therefore, when the employer in Vietnam unilaterally terminates the labor contract illegally, the employee submits a complaint to the employer or through the grassroots trade union to request the employer to fulfill the above 05 responsibilities. In case the complaint is filed but the employer still does not ensure the employee's benefits, the employee in Vietnam can file a lawsuit with the court to reclaim their rights.
Ty Na
