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Regulations on issues unilaterally terminate the labor contract, these is a notice that enterprises need to know to avoid errors if not the employer can lose when the case arises disputation in court
- Termination of labor contract due to “The employee regularly fails to fulfil the task assigned by contract.” In general, the employer base on the results of the work assigned to the employees do not satisfy their expectations and the employees do not notice to the specific provisions of labor law : the degree dose not complete the work that must be clearly stated in the labor contract, collective labor agreement or Internal labour regulations of the enterprise; the degree does not complete the work due to subjective elements; and the employees must be written or remind by writing at least two times a month later still no overcoming.
- In the case “employee is disciplined and dismissed”, usually the company based on content of Internal labour regulations has been registered with the Department of Labour, Invalids and Social local as a basis of giving employee the sack. In this case, enterprises need to pay attention, if the Internal labour regulations do not write value of property theft, embezzlement, disclosure fo technological and business secrets or other acts causing severe losses to the property and interests of the enterprise, there is not the basis for the application of this when unilateral termination of a labor contract.
- If negligence do not invite Executive Committee of the trade union which join or ideas in any procedures that the law requires the participation or their opinion will make termination of a labor contract process of the employer becomes invalid. Particularly enterprises have not established trade union local yet, unilaterally termination of labor contract must be consulted of Divide or Department of Labour, Invalids and Social local or industrial zones management board to unilaterally the labor contract to replace the consultation of trade union local for some cases is only temporary measures and do not have legal basis that will be considered legally. In some areas these agencies also answer but at some places in no, because these agencies consider that they are not competent to answer such questions.
- In case of termination of the labor contract with reason “as a result of structural or technological changes” in common mistake of human staff do no conduct a mandatory procedure “re-train employee for continued employment in new jobs before termination labor contract.” Besides, not any as a result of structural or technological changes that could be reason to terminate the labor contract, which only applies to changing a part or the whole of machinery, equipment, technological process advanced higher labor productivity, or changes in the product or the product structure leads to use less labor, or change the organizational structure (if there is a merger or dissolution of a number of parts businesses). However, a clear proof that machinery, equipment, technological precess habe higher labor productivity or changes in the product can be made to use less labor that is not easy. In addition, change one person in any part of the enterprises that would not normally be considered as structural changes, except for that parts have only one person undertakes.
- Negligence in commonly that companies often forget disciplinary measures. Disciplinary measures shall be applied within a period not exceeding three months as from the date of contravention or discovery violations, and six months for violations related to financial, property, disclosure of technological and business secrets. Thus, if limitation expired but still applied dismissal, If a dispute arises in this case, companies losed easily.
- Other negligence employer shall dismissal employee in case employee is under treatment or occupational disease or leave permitted by the employer or awaiting results of the investigation agencies have jurisdiction over acts committed or female worker pregnancy, maternity leave, or that she is nursing a child under 12 months of age or male worker is nursing a child under 12 months of age contrary to the provision of the Labor Code.
- Dismissal decision due to who have decision-making or power of attorney of the legal representative of enterprise. In fact, some cases, dismissal decision did not issued out authority right that is a negligence commonly. Another cases, disciplinary measures do not allow to ask lawyer defend the employee, or the disciplinary records are not the opinion of the executive board of the local trade union. One other is disciplinary measures when employee is absent only twice, while the lawful provision is three times that can be allowed to discipline without the presence of the parties.
- Another reason, difficulty to prove the termination of the labor contract is “due to natural disasters, fires or other force majeure under the provisions of the Government that the employer has to find ways to overcome but still forced to narrow production and cut jobs”. Negligence here is “other force majeure read reason” which the case requested by the State competence agencies from the provincial level or natural calamities, disease could not overcome to lead to changing, narrow business. The other force majeure reasons deduced by employer, such as parent companies lose customers which should not order a subsidiary company in Vietnam and subsidiary company can not arrange the jobs....will not be considered force majeure reasons for employer may unilaterally terminate the labor contract.
Legal consequences of unilaterally terminating a labour contract in infringement of the law
- According to provision if Labor Code (article 41 labor code): when unilaterally terminating a labour contract in infringement of the law, the employer must re-employ the employee to the work as agreed upon in the contract and pay a compensation equal to the amount of wage and additional payment to wage (if any), corresponding to the period the worker was not allowed to work, and an addition of at least two month wages plus allowances, (if any)
- A worker not wishing to return to work shall receive, In addition to such compensation stipulated as above, a severance allowance in accordance with the provision of Article 42 of this Code.
- According to provision clause 1, article 42 this code when terminating the labour contract of an employee who has been regularly employed in an enterprise, office or organization for full and more than 12 months, the employer must pay such employee a severance allowance at the rate of half a month’s salary plus salary allowance, if any, for each year of service.
- In the case the employer does not want to re-employ the employee and the employee also agrees with such a decision, both parties can negotiate upon the additional compensation apart from sums indicated in the first section of this clause as well as in the provisions of Article 42 of this Code in order to terminate the labour contract. | |
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