Recently, due to the complicated situation of the Covid-19 epidemic, which severely affected the economy, the labor market of Vietnam was also affected. Therefore, a number of legal issues on unemployment benefits are always of great concern to employees.
Article table of contents
1. Are probationers entitled to unemployment benefits?
Unemployment benefits are the money that workers think about most when they are unemployed. So when employees are in the process of probation and can not predict when to be unemployed, will employees still receive unemployment benefits at that time?
According to Point b Clause 3 Article 53 of the Law on Employment 2013 of Vietnam, a person on unemployment allowance will stop receiving it in case he/she has found a job.
On the other hand, according to Point b Clause 1 Article 21 of the Decree No. 28/2015/NĐ-CP amended by Clause 9 Article 1 of Decree No. 61/2020/NĐ-CP of Vietnam’s Government, an employee will be deemed as employed if he/she falls into one of the following cases:
- He/she has concluded an employment contract, a seasonal labor contract or a piecework contract with a term of full 1 month or more. The date on which the employee is determined as having a job is the effective date of the employment or labor contract in accordance with law;
- There is a recruitment or appointment decision for cases in which an employee is not classified as eligible for entry into a labor or employment contract.
- He/she has a business household registration certificate in case the employee is the homeowner of the business household, or has an enterprise registration certificate in case the employee is the business owner.
- The employee notifies the employment service center that he/she has got a job.
From the above provisions, it can be seen that probationary workers are still considered unemployed. Thus, probationary workers are still eligible for unemployment benefits if meeting full conditions for unemployment allowance receipt specified in Article 49 of the Law on Employment 2013 of Vietnam.
However, employees need to compare with the above provisions to consider the type of contract entered into and the duration of the contract during the probationary period at the new company, from which they can come to a firm conclusion whether or not they are still eligible for unemployment benefits while they are on probation at the new company.
Example: A works at garment company B, after quitting, A applies for a trial job at company C for 1 month. Then, during that 1-month probationary period, A can still receive unemployment insurance due to the fact that this contact is not falling to the case “having concluded an employment contract, a seasonal labor contract or a piecework contract with a term of full 1 month or more” as specified in Point b Clause 1 Article 21 of the Decree No. 28/2015/NĐ-CP of Vietnam’s Government.
2. Is it possible for authorization for receipt of unemployment benefits?
It it the Decree No. 61/2020/NĐ-CP (effective from July 15, 2020) of Vietnam’s Government amending Decree No. 28/2015/NĐ-CP was not issued, in some force majeure circumstances specified in Clause 4 Article 18 of Decree No. 28/2015/NĐ-CP, employees will be able to authorize others to receive decisions on unemployment benefits.
However, Clause 4 Article 18 of Decree No. 28/2015/NĐ-CP has been annulled by Article 2 of Decree No. 61/2020/NĐ-CP of Vietnam’s Government. Thus, from July 15, 2020, the employee is no longer authorized another person to receive the decision on unemployment benefits but must receive it himself.
Although the employee can no longer authorize another person to receive the decision on unemployment benefits, the employee is still allowed to authorize another person to submit a dossier or send a dossier of application for unemployment benefits by post.
Moreover, if the employee does not wish to receive his/her unemployment benefit, the employee must directly, or authorize another person to, submit the written request for refusal to receive unemployment benefit to the employment service center at the place where the employee has submitted the application for unemployment benefit (Clause 7 Article 1 of the Decree No. 61/2020/NĐ-CP of Vietnam’s Government).
3. Is it required to pay back the unemployment benefits in case of having a job?
According to Point b Clause 3 Article 53 of the Law on Employment 2013 of Vietnam, a person on unemployment allowance will stop receiving it in case he/she has found a job.
According to Point n Clause 1 Article 21 of the Decree No. 28/2015/NĐ-CP of Vietnam’s Government, in case of having a job, the employee is responsible for notifying the employment service center that he or she has a job to complete the procedures for termination of unemployment benefits (the date on which the employee is determined to have a job is the date stated in the employee's notice of employment).
If the employee fails to notify the employment service center when he or she has a job, he or she may be fined according to Point c Clause 1 Article 39 of the Decree No. 28/2015/NĐ-CP of Vietnam’s Government. In addition to the fine, the employee is forced to return to the social insurance organization the amount of social insurance and unemployment allowance received due to the violation.
Thus, employees should note that, when having a job, they must notify the employment service center to stop enjoying unemployment benefits, otherwise they will be fined and must refund the amount received.
4. If the unemployment benefit is stopped due to a new job, will the unearned period be preserved as a basis for the next benefit?
“Having found a job” is one of cases of stopping receiving unemployment benefits (Point b Clause 3 Article 53 of the Law on Employment 2013 of Vietnam). Thus, if the employee falls into this case, he/she may have the period of payment of unemployment insurance premiums reserved for calculating the subsequent duration of receipt of unemployment allowance when they fully satisfy the conditions specified in Article 49 of this Law.
The reserved period equals the total of the periods of payment of unemployment insurance premiums minus the period during which the worker has received unemployment allowance, with one month of receipt of unemployment allowance equivalent to 12 months of payment of unemployment insurance premiums.
Example: Mr. Nguyen Van A worked for company B, paid unemployment insurance for 48 months with the average salary of the last 6 months is 6,000,000 VND.
Mr. A's unemployment insurance benefit period is 4 months.
However, after receiving unemployment benefits for 2 months, Mr. A found a job and informed the employment service center to reserve the time he has not yet received unemployment benefits. So, how much time is Mr. A's retained unemployment insurance premium?
Answer: According to the principle, each month of Mr. A's unemployment benefit is calculated corresponding to 12 months of paying unemployment insurance premiums.
Thus, the reserved period = 48 - (2 x 12) = 24 months.
Above are 4 common problems of employees about unemployment benefits. If you have any related questions, please contact (028) 7302 2286 for detailed support by LAWNET.
Thu Ba
