Vietnam: What should employees do in case the enterprise issues a dismissal decision in order to “avoid” Tet bonus?

According to Article 125 of the Labor Code 2019 of Vietnam, dismissal is one of the heaviest forms of disciplinary measures for an employee, applied in the following cases:

1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;

2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;

3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.

4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.

Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.

If it is proved that the employee commits one of the above acts stemming from the fault of the employee, the employer has the right to issue a decision on dismissal according to the order and procedures prescribed by law.

Note: The employer must not dismiss an employee or unilaterally terminate the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operation, declared by a provincial business registration authority that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations.

Upon expiration of the employment contract with female employee who is pregnant or nursing a child under 12 months of age, conclusion of a new employment contract shall be given priority.

Thus, in case the enterprise makes a decision on dismissal to "avoid" the Tet bonus without any grounds that the employee has committed a violation, the employee can negotiate and re-negotiate with the employer about this decision. If the negotiation fails, the employee can apply to the Court to have his/her legitimate rights and interests protected.

The Labor Code 2019 of Vietnam will take effect from January 01, 2021. Customers and Members should pay attention to the validity of the document when applying.

Thuy Tram

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