According to the current labor laws, enterprises hiring laborers have the right to unilaterally terminate labor contracts, and vice versa. However, the unilateral termination of labor contracts must be carried out in accordance with the law.
1. Cases in which enterprises unilaterally terminate the labor contract
Ms. L signed a labor contract and worked at Company X for 5 years. In 2021, she fell ill and had to receive treatment at the hospital for a long period of time. Because of that reason, Company X unilaterally terminated the labor contract with Ms. L by giving these reasons: her exceeding the prescribed number of days off, failure to complete work, and frequent requests for half-day leave.
With the above situation, Company X unilaterally terminate the labor contract. According to Article 37 of the Labor Code 2019, cases in which enterprises are not allowed to exercise the right to unilaterally terminate labor contracts are:
– Laborers who are sick or injured, are being treated, nursed, etc. Except for cases specified in Point b, Clause 1, Article 36 of the Labor Code 2019.
– Laborers on annual leave, personal leave, with the consent of the employer.
– Pregnant female laborers, laborers on maternity leave, or nursing children under 12 months of age.
Therefore, in these cases, enterprises do not have the right to terminate the labor contract with laborers. This is a provision to protect the rights and interests of laborers that enterprises must not violate.
2. What happens when enterprises unlawfully terminate labor contracts with laborers?
Article 41 of the Labor Code 2019 stipulates the obligations of employers when unlawfully terminating labor contracts as follows:
– The employer must allow the laborer to return to work according to the agreed labor contract.
– The employer must pay wages, contribute to social insurance, health insurance, and unemployment insurance for the days the laborer cannot work.
– The employer must pay the laborer an additional amount equal to at least 2 months’s wages according to the labor contract.
– In case there is no position or job assigned in the labor contract that the laborer still wishes to work, the two parties shall agree to amend and supplement the labor contract.
– In case the employer violates the notice period for unilateral termination of the labor contract specified in CLause 2, Article 36 of the Labor Code 2019, the employer must pay an amount corresponding to the wages according to the labor contract for the days without prior notice.
– In case the laborer does not want to continue working, the employer must pay the above amounts along with severance pay.
– If the employer does not want to re-employ the laborer and the laborer agrees, the employer must pay the above amounts, severance pay, and must compensate an amount equal to at least 2 months’ wages according to the labor contract.
- Harley Miller Law Firm “HMLF”
- Address: 14th floor, HM Town building, 412 Nguyen Thi Minh Khai, Ward 05, District 3, Ho Chi Minh City.
- Phone: +84 937215585
- Website: hmlf.vn
- Email: miller@hmlf.vn
