Termination of labor contracts in the 2012 Labor Code and practical application in enterprises in Vietnam

or for a certain job with a term of less than 12 months has the right to unilaterally terminate the labor contract before the term in the following cases:

- Not being assigned to the correct job or work location or not being guaranteed working conditions as agreed in the labor contract;

- Not being paid in full or not being paid on time as agreed in the labor contract;

- Abuse, sexual harassment, forced labor;

- Individual or family is in difficult circumstances and cannot continue to perform the labor contract;

- Elected to hold a full-time position in an elected body or appointed to a position in the state apparatus;

- Pregnant female employees must take leave from work as directed by a competent medical examination and treatment facility;

- Employees who are sick or have an accident and have been treated for 90 consecutive days for those working under a fixed-term labor contract and one-quarter of the contract term for those working under a seasonal labor contract.

service or on a particular job

Injury, drug use in the workplace, disclosure of business secrets, technological secrets, infringement of intellectual property rights of the employer, acts causing serious damage or threatening to cause especially serious damage to the property and interests of the employer;

- Employees who are disciplined by extending the salary increase period and re-offend during the period when the discipline has not been cleared or are disciplined by dismissal and re-offend.

- Employees voluntarily quit their jobs for 05 cumulative working days in 01 month or 20 cumulative working days in 01 year without a valid reason. (Valid reasons include:

- Due to natural disasters, fires;

- Self, biological father, biological mother, adoptive father, adoptive mother, father-in-law, mother-in-law, father-in-law, mother-in-law, wife or husband, biological child, legally adopted child are sick with a certificate

of medical examination and treatment facilities

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has a term of less than 12 months and the ability to work has not been restored.

2. The employer has the right to unilaterally terminate the labor contract in the following cases:

- Employees regularly fail to complete work according to the labor contract;

- Employees who are sick or have an accident and have been treated for 12 consecutive months for those working under an indefinite-term labor contract, have been treated for 6 consecutive months for those working under a fixed-term labor contract, and more than half of the labor contract term for those working under a seasonal labor contract or a specific job contract with a term of less than 12 months, but their ability to work has not yet recovered.

When the employee's health recovers, the employee will be considered for continued signing of the labor contract;

- Due to natural disasters, fires or other force majeure reasons as prescribed by law, the employer has sought all remedial measures but is still forced to reduce production and jobs;

- Employees are not present at work after the prescribed time limit.

Labor Code 2012.

The hospital is established and operates in accordance with the provisions of law;

- Other cases are specified in the labor regulations.)

2. Legal consequences when

illegal

1. Obligations of the employer when unilaterally terminating the labor contract illegally:

- Must accept employees back to work according to the signed labor contract and must pay salary, social insurance, health insurance (HI) for the days the employee was not allowed to work plus at least 02 months of salary according to the labor contract.

- In case the employee does not want to continue working, in addition to the compensation according to regulations, the employer must pay severance allowance according to the provisions of the 2012 Labor Code.

- In case the employer does not want to take back the employee and the employee agrees, in addition to the compensation and severance allowance as prescribed, the two parties shall agree on an additional compensation amount, but it must be at least equal to 02 months' salary according to the labor contract to terminate the labor contract.

- In case there is no longer a position or job as agreed in the labor contract but the employee still wants to work, in addition to the compensation according to regulations, the two parties will negotiate to amend and supplement the labor contract.

- In case of violation of the regulations on notice period, compensation must be paid.

Employers who illegally handle disciplinary dismissals are subject to:

- Administrative fine from 10 million to 15 million VND [7, Article 15, Clause 3, Point c]

- Forced to accept employees back to work according to the signed labor contract and must pay salary, social insurance, health insurance for the days the employee was not allowed to work plus at least 02 months of salary according to the labor contract (*).

- In case the employee does not want to continue working, in addition to the compensation as mentioned in section (*), the employer must pay severance allowance according to the provisions of the Labor Code.

- In case the employer does not want to take back the employee and the employee agrees, in addition to the compensation as in section (*) and severance pay, the two parties shall agree on an additional compensation amount but it must be at least equal to

02 months salary according to the labor contract to terminate the labor contract.

- In case there is no more position or job contract

in the labor contract that the employee still

give the employee an amount of money equivalent to the employee's salary for the days without notice.

2. Obligations of employees when unilaterally terminating labor contracts illegally:

- Not entitled to severance pay and must compensate the employer half a month's salary according to the labor contract.

- If the regulations on notice period are violated, the employer must compensate the employee an amount equivalent to the employee's salary for the days without notice.

- Must pay back training costs

Employers as prescribed in Article 62 of this Code.

If the employee wants to work, in addition to the compensation as in section (*), the two parties must negotiate to amend and supplement the labor contract.

3. Principles and procedures

- Must fall into one of the cases that allow unilateral termination of the contract;

- Must comply with regulations on notification deadlines.

- The employer must prove the employee's fault;

- Must have the participation of the organization representing the collective labor at the facility;

- Employees must be present and have the right to defend themselves, have a lawyer or another person defend them; in the case of a person under 18 years of age, the participation of a parent or legal representative is required;

- Labor discipline must be recorded in writing.

[30, Article 13, Clause 1].

According to the above analysis, unilateral termination of the labor contract will be simpler in terms of procedures than disciplinary dismissal. However, in cases where employees commit serious violations, applying disciplinary dismissal will have a strong effect in strictly maintaining the labor regulations and collective labor agreements of the enterprise.

While the 1994 Labor Code considers dismissal as one of the rights of the employer to unilaterally terminate the labor contract, the 2012 Labor Code has separated dismissal from unilateral termination of the labor contract. Accordingly, dismissal is considered one of the cases of termination of the labor contract not due to the will of the employer or the employee. The reason for such amendment in the 2012 Labor Code is because in other cases leading to the employer unilaterally terminating the labor contract, the process for the employer to unilaterally terminate the labor contract with the employee only goes through 2 stages: The employee violates the regulations  The employer exercises the right to unilaterally terminate the labor contract. As for the form of disciplinary dismissal, if according to the provisions of the 1994 Labor Code, it will go through 3 stages: The employee violates the regulations  The employer applies the form of disciplinary dismissal  The employer exercises the right to unilaterally terminate the labor contract. Such a provision is incorrect because when the employee is applied the form of disciplinary dismissal, the employee will of course no longer continue to work for the employer according to the signed labor contract. Therefore, the action "The employer exercises the right to unilaterally terminate the labor contract" afterwards is redundant. Therefore, the 2012 Labor Code has amended and considered the case of the employee being disciplined by dismissal as a case of termination of the labor contract regardless of the will of the employee or the employer, which is correct.

The law gives employers the right to fire employees when they violate the law. However, as analyzed in the previous sections, in labor relations, employees are always the weaker party, the more disadvantaged party.

more. Therefore, the labor law has provided exceptions, according to which, the employer does not have the right to dismiss the employee when those exceptions occur. According to the provisions of Clause 3, Article 155 of the Labor Code 2012, the employer is not allowed to dismiss " female employees for reasons of marriage, pregnancy, maternity leave, raising children under 12 months old, except in cases where the employer is an individual who dies, is declared by the Court to have lost civil act capacity, is missing or dead, or the employer is not an individual who ceases operations " and according to Points a, b and c, Clause 4, Article 123 of the Labor Code 2012, the employer is also not allowed to dismiss employees who are on sick leave, nursing leave; leave with the consent of the employer; are being detained or imprisoned; Waiting for the results of the competent authority's investigation, verification and conclusion regarding acts of theft, embezzlement, gambling, intentional injury, drug use in the workplace, disclosure of business secrets, technological secrets, infringement of intellectual property rights of the employer, acts causing serious damage or threatening to cause especially serious damage to the property and interests of the employer.

In addition to having legal grounds, when dismissing employees, employers must comply with the provisions of the law on the order and procedures for handling labor discipline. The law provides very strict regulations on labor discipline procedures to protect the maximum interests of employees while limiting violations by employers in this matter. According to the analysis table, the procedure for handling disciplinary dismissal will go through the following steps:

(1) The employer must prove the employee's fault;

(2) Must have the participation of the organization representing the collective labor at the facility;

(3) Employees must be present and have the right to defend themselves, have a lawyer or another person defend them; in the case of a person under 18 years of age, the participation of a parent or legal representative is required;

Clause 7, Article 192 of the 2012 Labor Code stipulates that when the employer

Dismissal of employees who are part-time union officials must be agreed upon in writing with the grassroots union executive committee or the executive committee directly above the grassroots level.

Unlike other cases of termination of labor contracts, dismissal is only applied when the employee's fault is serious or serious, leading to great damage to the employer. Therefore, to have a basis to conclude whether the employee's fault is serious enough to be subject to disciplinary dismissal or not, an investigation and review process is needed. However, to ensure that the investigation process does not affect the employee's work as well as the production and business process of the employer, the 2012 Labor Code stipulates the statute of limitations for disciplinary dismissal as follows:

Article 124. Statute of limitations for handling labor discipline

1. The maximum statute of limitations for handling labor discipline is 06 months from the date of the violation; in cases where the violation is directly related to finance, assets, disclosure of technological secrets, or business secrets of the employer, the maximum statute of limitations for handling labor discipline is 12 months.

2. When the time limit specified in Points a, b and c, Clause 4, Article 123 expires, if there is still time limit for handling labor discipline, the employer shall immediately handle labor discipline. If the time limit expires, the time limit for handling labor discipline may be extended, but not more than 60 days from the date of expiration of the above time limit.

When the time limit specified in Point d, Clause 4, Article 123 expires, the statute of limitations for handling labor discipline may be extended, but not more than 60 days from the date of expiration of the above-mentioned time limit.

3. Decisions on labor discipline must be issued within the time limit specified in Clauses 1 and 2 of this Article [30].

According to Article 86 of the 1994 Labor Code, the maximum statute of limitations for handling labor discipline is three months from the date of the violation, and in special cases, it cannot exceed six months. The provisions on the statute of limitations for handling disciplinary dismissal in particular and handling labor discipline in general as prescribed in the 2012 Labor Code have partly resolved the shortcomings of the 1994 Labor Code by extending the time limit for handling labor discipline from three months to six months, and in cases where the violation is directly related to finance, property, disclosure of technological secrets, or business secrets of the employer, the maximum statute of limitations for handling labor discipline is 12 months. This amendment will help limit the number of cases of labor discipline violations that are declared to have expired the statute of limitations for handling disciplinary dismissal, better ensuring the legitimate rights of employers.

The fact that the labor law stipulates that employers are not allowed to take disciplinary action against employees when the employees are on sick leave, recuperating; taking leave with the employer's consent; being detained or imprisoned; awaiting the results of the competent authority's investigation, verification and conclusion for acts of theft, embezzlement, gambling, intentional injury, drug use in the workplace, disclosure of business secrets, technological secrets, infringement of intellectual property rights of the employer, acts that cause serious damage or threaten to cause especially serious damage to the property and interests of the employer; female employees who are pregnant or on maternity leave; employees raising children under 12 months old demonstrates the humanity of the law. However, to ensure the rights of employers when employees violate to the extent that disciplinary dismissal can be applied but fall into one of the above exemptions, the 2012 Labor Code has added two additional solutions as follows:

+ When the employee is on sick leave, nursing leave; is on leave with the employer's consent; is being detained or imprisoned; is awaiting the results of the competent authority's investigation, verification and conclusion regarding acts of theft, embezzlement,

Termination of labor contracts in the 2012 Labor Code and practical application in enterprises in Vietnam - 5

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