Can businesses immediately terminate an employee after suspending the execution of a contract? This is a question that Thu Ky Luat has recently received quite frequently from our Valued Customers and Members. The editorial team at Thu Ky Luat will address this issue in the article below.
Article table of contents
.jpg)
Is it permissible to terminate employees after a temporary suspension of the employment contract? (Illustrative Image)
1. Conditions for Temporarily Suspending the Employment Contract
Current law does not specifically define the concept of "temporary suspension of the employment contract," but it can be understood as: “Temporary suspension of the employment contract is when the employer and employee agree to stop executing the rights and obligations of the parties as signed in the employment contract for a certain period of time.” This temporary suspension is entirely based on the mutual agreement of the employee and the employer, but must comply with labor law.
Specifically, Article 32 of the Labor Code 2012 and Article 9 of Decree 05/2015/ND-CP stipulate the cases in which the employee is allowed to temporarily suspend the performance of the employment contract, including:
- Employees performing military service.
- Employees detained, held in custody as per criminal procedural law.
- Employees must comply with a decision to apply measures to enter a reform school, mandatory rehabilitation center, or compulsory education center.
- Pregnant female employees, if there is a certification from a competent health agency that continuing to work would adversely affect the fetus.
- Other cases agreed upon by both parties.
- Temporary suspension of the employment contract when appointed or assigned as a representative of the State's capital contributions.
However, unlike the case where the employee takes unpaid leave, the enterprise is not required to include the contents of Temporary Suspension of the Employment Contract in the Internal Labor Regulations, but it is based on the provisions of the law and the agreement between the enterprise and the employee to carry out the temporary suspension of the contract. Nevertheless, when agreeing to temporarily suspend the performance of the employment contract, the enterprise should formalize it in writing and attach it to the previously signed employment contract.
2. Can an employee be dismissed immediately after the period of temporary suspension?
Article 33 of the Labor Code 2012 stipulates:
Within 15 days from the date the temporary suspension of the employment contract ends for the cases prescribed in Article 32 of this Code, the employee must be present at the workplace, and the employer must accept the employee back to work unless otherwise agreed by both parties.
This indicates that when the temporary suspension period ends, the enterprise is obliged to take the employee back to work if the employee is present at the workplace within 15 days from the end date of the temporary suspension of the employment contract as per the current law. If after this period the enterprise cannot arrange work for this employee, then after accepting the employee back to work, the enterprise and the employee can agree to terminate the employment contract early. This termination is carried out according to the provisions of Article 38 of the Labor Code.
It can be seen that the current law does not allow enterprises to unilaterally terminate the employee after the expiration of the temporary suspension period of the contract, which was previously agreed upon by both parties.
3. Is salary payable during the temporary suspension of the labor contract due to Covid-19?
On March 25, 2020, the Ministry of Labor, Invalids and Social Affairs issued Official Dispatch 1064/LD-TBXH-QHLDTL guiding salary payment and policy settlement for employees during work stoppage related to the Covid-19 pandemic.
For the case where employees must stop working due to the direct impact of Covid-19, the stoppage salary is agreed upon by both parties but must not be lower than the regional minimum wage prescribed by the Government of Vietnam.
In the case where enterprises face difficulties in sourcing raw materials or markets, leading to insufficient work arrangements, the employer may temporarily transfer the employee to another job different from the employment contract under Article 31 of the Labor Code; if the work stoppage lasts and affects the enterprise's payment ability, the employer and the employee can agree to temporarily suspend the employment contract as per Article 32 of the Labor Code; if the enterprise has to scale down production, leading to a reduction in jobs, labor arrangement follows Article 38 or Article 44 of the Labor Code.
For temporary suspension, the Labor Code does not stipulate salary during the suspension period; however, Article 4 of this Code encourages that the State and the employer agree to ensure employees have more favorable conditions than those prescribed by labor law. (This content was explained by the Ministry of Labor, Invalids and Social Affairs in Official Dispatch 1462/LD-TBXH-LDTL on May 7, 2014, regarding salary during work stoppage and temporary suspension of employment contracts)
Thus, in the case where employees must stop working due to the direct impact of Covid-19, the stoppage salary is agreed upon by both parties and must not be lower than the regional minimum wage, whereas in the case of mutual agreement to temporarily suspend the employment contract, current law does not require the enterprise to pay salary for employees during the contract suspension period, but encourages both parties to agree based on the enterprise's actual situation to ensure employees have more favorable conditions than those prescribed by labor law.
Duc Thao
