harassment. In addition, the grounds for termination of “not being guaranteed the working conditions agreed upon in the labor contract” are not really clear. Furthermore, in many cases where working conditions are not stipulated in the labor contract, labor regulations, or collective labor agreement of the enterprise, employees who want to terminate the labor contract will encounter difficulties. For example, the working hours of an employee who is a worker at a construction site exceed the working hours according to the labor contract, but the time sheet does not clearly state the working hours, is it legal for the employee to unilaterally terminate the labor contract due to not ensuring working conditions?
Regarding termination procedures, when unilaterally terminating the labor contract, employees must also comply with the notice period to the employer, depending on each case, it can be 03 days, 30 days or 45 days or another period.
In case the employee violates the regulations on grounds or procedures for termination, the employee must bear some legal consequences such as: Not receiving severance pay and must compensate the employer with half a month's salary according to the labor contract; If violating the regulations on notice period, the employee must compensate the employer with an amount of money equivalent to the employee's salary for the days without notice; Must reimburse the training costs to the employer according to the provisions of Article 62 of the 2012 Labor Code.
Thus, the current limitation of the compensation level in the case of an employee illegally terminating a labor contract is that: If the employee violates the grounds for termination, he/she will not receive severance pay; and if the employee violates the termination procedure, he/she will not receive severance pay and must compensate the salary corresponding to the time of no notice. This shows that the amount of compensation that the employee must pay in the case of violating the termination procedure is much higher than in the case of violating the grounds for termination. Moreover, in the case of an employee unilaterally terminating a labor contract illegally, the compensation level is much higher than in the case of an employee illegally terminating a labor contract.
Usually, the damage is according to the provisions of Article 43, Labor Code 2012, half a month's salary is not enough of a deterrent. Although this is meant to protect employees, it does not ensure the legitimate rights and fairness of employers, creating a mentality for employees to easily terminate labor contracts, causing instability in labor relations.
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For example, in the consulting case No. 04/2013/INCO at InvestConsult Law Firm, the employer, Thang Long GTC Company Limited, was unilaterally terminated by the employee, Mr. Nguyen Thanh Nguyen - Deputy Head of Technical Department, working under an indefinite-term labor contract [21]. Mr. Nguyen's salary before leaving the job was 10 million VND/month. Mr. Nguyen had notified the company 15 days in advance of the termination of the labor contract to work for a rival company, Bourbon Vietnam Company, with a higher salary (20 million VND/month). The compensation he had to pay the company was half a month's salary (5 million VND) plus compensation for violating the notice period (15 million VND), totaling 20 million VND. Due to negligence, the company also did not sign a liability contract with Mr. Nguyen, so it was entirely possible that he would transfer information related to Thang Long GTC's customers to the new company. Thus, the indirect damage of Thang Long GTC company is not only the loss of human resources, but also the economic loss.
Through this case, it can be seen that, for important positions in the enterprise, employers should sign liability contracts with employees, and lawmakers also need to consider increasing the compensation level of employees to better ensure the legitimate rights and interests of employers, while ensuring the stability of labor relations.
2.2.2.2. Compensation for damages due to breach of training contract
Vocational training can be understood as activities to teach new occupations or improve skills for apprentices at vocational training institutions or at enterprises.
Vocational training as prescribed in Article 61 and Article 62 of the 2012 Labor Code can be implemented in two ways: Employers recruit people to learn a trade or do an internship to work for them, or employers pay or their partners pay for employees to be trained, improve their qualifications and skills, or retrain domestically or abroad.
In the first case, the employer is not allowed to collect tuition fees from the employee, therefore, the relationship of compensation for damages for training costs due to violation of the vocational training contract does not arise. The relationship of compensation for damages due to violation of the vocational training contract mainly arises in the second case, when the employee violates the commitment period to work for the employer after being trained. Currently, in order to limit disputes that may arise from the understanding of the content of "training costs", Clause 3, Article 62, Labor Code 2012 has clearly stipulated this content as follows:
Training costs include expenses with valid documents on expenses paid to teachers, learning materials, schools, classes, machines, equipment, practice materials, other costs supporting learners and salaries, social insurance and health insurance for learners during the training period. In case the employee is sent for training abroad, the training costs also include travel expenses and living expenses during the time abroad [14, Article 62, Clause 3].
Currently, the 2012 Labor Code only stipulates that if an employee unilaterally terminates a labor contract illegally, he or she must compensate for training costs. In reality, if an employee terminates the contract legally, for example, when a fixed-term labor contract expires, does the employee have to compensate for training costs? To ensure the rights of employers, the 2012 Labor Code also clearly stipulates
that both parties when conducting training need to sign a training contract. Thus, even in the case of the employee terminating the labor contract in accordance with the law, the content of the refund of training costs is still recorded in the training contract, at this time the employer has enough grounds to request compensation from the employee.
Another problem that is currently arising is that, in the case of employees completing the training process, for example, committing to work for the employer for 5 years, but after only 3 years they unilaterally terminate the labor contract, in this case, how much compensation for training costs is required? Currently, there are two viewpoints on this issue, the first is that employees must compensate for all training costs, the second is that employees only need to compensate a part of the training costs, corresponding to the time they do not work as committed. Perhaps the second viewpoint is more reasonable, considering that after being trained, employees have also worked and contributed to the employer for a period of time, having to compensate for all training costs is a huge burden for employees, limiting their ability to freely work.
According to Article 62 of the 2012 Labor Code, apprentices who violate the regulations on apprenticeship must reimburse the training fee to the trainer, including: expenses with valid documents on expenses paid to the trainer, learning materials, schools, classes, machines, equipment, practice materials, other costs supporting the apprentice, and salary, social insurance, and health insurance for the apprentice during the training period. In case the employee is sent for training abroad, the training fee also includes travel expenses and living expenses during the time abroad.
In fact, many businesses, after spending money on training employees, are still willing to terminate their labor contracts, refund training fees, and move to work for another business with a higher salary. Therefore, businesses that provide vocational training for employment will suffer a lot of losses.
such as lack of workers to take on the job while traveling and not being able to find replacement workers, production is slowed down. Many units want to "overcome" the above disadvantages by setting their own measures (not in the law, even contrary to the provisions of the law) to bind them, retain apprentices. In addition to forcing apprentices to pay for apprenticeship costs, businesses also require apprentices to mortgage a sum of money when studying a trade [8, p.31]. This amount of money will of course be lost if the employee does not fulfill his/her commitment to work at the business. In the current market economy, the skilled workforce is still too small to meet all market demand. Therefore, should the labor law officially allow the two parties to agree on additional compensation for violating the work commitment in the signed apprenticeship contract to protect the legitimate interests of the employer?
For example, the dispute between Samsung Research and Development Company (SRD) and Mr. Nguyen Quoc Cuong [15]. On April 1, 2013, SRD Company and Mr. Nguyen Quoc Cuong signed a labor contract with a term of 3 years. On August 27, 2013, the company signed a training contract, according to which Mr. Cuong was sent to Korea for training for 3 months with the condition that after completing the course, he must work for the company for at least 5 years. On June 10, 2014, Mr. Cuong resigned to work for Gmobille Company. The company negotiated with Mr. Cuong many times and asked him to return to work for the company, but he did not agree. Therefore, SRD requested Mr. Cuong to compensate for the entire training expenses of 4,356.73 USD, including round-trip airfare of 1,400 USD, two-month salary of 260 USD, accommodation and insurance of 1,120.73 USD, training fee of 1,500 USD and violation of notice period of 76 USD. Mr. Cuong only agreed to compensate for food expenses of 649.96 USD, airfare of 1,400 USD, salary of 260 USD. The company did not agree with the compensation amounts proposed by Mr. Cuong. At the Labor Court of the People's Court of Hanoi City
After reviewing, the compensation of 1500 USD for training fees did not have enough payment documents and the Court ordered Mr. Cuong to compensate the amount as requested by the company but minus the vocational training fee. Through this, we see that determining the cost of vocational training is very difficult, especially for workers who go abroad for training. In some cases, due to the lack of invoices and actual documents, the damage will belong to the employer.
2.2.3. Compensation for damage to life, health and practical application
In labor relations, the employer is the one who has the right to organize and manage production, and is also the subject responsible for labor protection. Employees working under the management of the employer are obliged to properly implement measures to ensure safety for employees, prevent accidents and harmful effects on the health and life of employees during the labor process. Therefore, when an incident causing a work accident occurs or when an employee suffers from an occupational disease, the employer is the first subject responsible for compensating the employee for damages, including cases not directly caused by the employer and cases due to objective causes. In reality, the labor process always has potential risks that can cause work accidents and occupational diseases, leading to damage to the life and health of employees. Therefore, to ensure the benefits of employees who suffer from work-related accidents or occupational diseases, Vietnamese labor law has provisions on work-related accidents, occupational diseases, and compensation for damages related to the life and health of employees in corresponding cases.
An occupational accident is an accident that causes injury to any part or function of the employee's body or causes death, occurring during the work process, related to the performance of work and work tasks. Regulations on occupational accidents also apply to apprentices, trainees and probationary workers (Clause 1, Article 142, Labor Code 2012). Occupational diseases are diseases arising from work conditions.
Harmful working conditions of occupation affecting employees. The list of occupational diseases is issued by the Ministry of Health and the Ministry of Labor, War Invalids and Social Affairs after consulting with the Vietnam General Confederation of Labor and representatives of employers (Clause 1, Article 143, Labor Code 2012). As of May 2015, in Vietnam, there were 30 diseases recognized as occupational diseases covered by insurance [29]. Among these, some diseases have only been recognized recently, for example: Occupational bronchial asthma, Occupational carbon monoxide poisoning; Occupational oil spot disease; Occupational skin ulcers, nail inflammation and around nails newly recognized in Decision No. 27/2006/QD-BYT dated September 21, 2006 of the Ministry of Health; Occupational cadmium infection newly recognized in Circular 42/2011/TT-BYT; or occupational anthrax as recorded in Circular 36/2014/TT-BYT.
In general, current laws provide quite detailed regulations on the basis, grounds and procedures for employees to receive benefits when suffering from work-related accidents or occupational diseases. For example, for employees who suffer from work-related accidents, employers are obliged to pay the co-payment costs and costs not covered by health insurance for employees participating in health insurance and to pay all medical costs from first aid, emergency care to stable treatment for employees not participating in health insurance; pay full salary according to the labor contract for employees who have work-related accidents and have to take time off work during treatment; and especially, employers must compensate or pay benefits to employees according to the provisions of Clause 3, Clause 4, Article 145, Labor Code 2012. This issue is currently regulated in detail in Clause 1, Article 3, Circular 04/2015/TT-BLDTBXH.
The principles and levels of compensation for people with work-related accidents and occupational diseases are currently stipulated in Article 4 of Circular 04/2015/TT-BLDTBXH. The salary used as the basis for calculating compensation or benefits for work-related accidents and occupational diseases is the average salary of 6 consecutive months.
immediately before the occupational accident or before the occupational disease occurs. If the working, vocational training, apprenticeship, probationary or internship period is less than 6 months, the salary used as the basis for calculating compensation and allowances is the average salary of the previous months immediately before the occupational accident or the time of determining the occupational disease. For employees working under a labor contract, the method for determining the salary level used as the basis for calculating compensation and allowances is "the salary stated on the labor contract, including salary according to the job, position and salary allowance (if any)" . The regulation on salary level in Point 2, Article 6 of Circular 04/2015/TT-BLDTBXH as mentioned above is somewhat unreasonable, which can lead to the mentality of circumventing the law of a part of enterprises because in reality, the salary stated on the labor contract is only the basic salary in the enterprise, while the business salary is not stated, and is paid to employees in the form of bonuses.
In case the employer has purchased accident insurance for the employee who has suffered a work-related accident at an insurance service business unit, the employee who has suffered a work-related accident is entitled to compensation and allowance payments according to the contract signed with the insurance service business unit. If the amount paid by the insurance service business unit to the employee who has suffered a work-related accident is lower than the amount prescribed in Article 3, Circular 04/2015/TT-BLDTBXH, the employer must pay the remaining amount so that the total amount received by the employee or his/her relatives is at least equal to the compensation and allowance prescribed in Article 3 and Article 4 of Circular 04/2015/TT-BLDTBXH. If the employer does not pay social insurance for employees who are subject to compulsory social insurance as prescribed by the Law on Social Insurance, in addition to having to pay compensation as prescribed in Article 3 of Circular 04/2015/TT-BLDTBXH, the employer must pay social insurance benefits on behalf of the social insurance agency for employees who have occupational accidents or diseases.