Ask:
X Company Limited signed an indefinite labor contract with Mr. B. Mr. B suffered a vertebral injury due to a traffic accident, has been hospitalized for more than 1 year and has not yet recovered, so the Company has not recovered. X decided to terminate the labor contract with Mr. B. Is it right or wrong for the company to unilaterally terminate the labor contract with Mr. B? Before unilaterally terminating the labor contract, are employees given prior notice?
Reply:
Point b, Clause 1, Article 36 of the 2019 Labor Code, which took effect on January 1, 2021, stipulates: “Employees suffering from illness or accidents have received treatment for 12 consecutive months for employees working under contract. an indefinite term labor contract or 6 consecutive months of treatment for those working under a definite term labor contract with a term of between 12 months and 36 months or more than half the term of the labor contract for people working under definite-term labor contracts with a term of less than 12 months but their working capacity has not yet recovered.
When the employee’s health recovers, the employer will consider continuing to enter into a labor contract with the employee.
Mr. B works under an indefinite-term labor contract with company Therefore, the fact that company X has the right to unilaterally terminate the labor contract with Mr. B.
However, according to Clause 2, Article 36 of the 2019 Labor Code, in this case, when unilaterally terminating the labor contract, Company X must notify Mr. B at least 45 days in advance.
Ask:
Mr. Nguyen Van A works at Garment Joint Stock Company At the Company’s Trade Union Congress for the 2019-2020 term held in March 2019, Mr. A was elected by the Congress as Chairman of the Company’s Trade Union. On June 15, 2019, 15 days before the contract expired, the Director of Garment X Joint Stock Company signed a notice to terminate the labor contract with Mr. The contract signed with Mr. A has expired.
Assume that the provisions of the Labor Code 2019 apply in this situation. Is it legal for the company to terminate the labor contract with Mr. A?
Reply:
Clause 1, Article 34 of the Labor Code 2019 provides for cases of termination of a labor contract, one of the cases of termination of a labor contract is “The expiration of the labor contract, except the case specified in Clause 1 of this Article.” 4 Article 177 of this Code”
Clause 4, Article 177 of the Labor Code 2019 stipulates:
“The signed labor contract must be extended until the end of the term for the employee who is a member of the management board of the employee representative organization at the establishment during the term of which the labor contract expires.”
The case of Mr. Nguyen Van A is the chairman of the grassroots trade union of the Company (term of 2019-2020). Although by June 30, 2019, the labor contract signed by the Company with Mr. A expires, but Mr. A is still in the union term, he can extend the labor contract until the end of the congress term. Thus, it is illegal for Garment X Joint Stock Company to terminate the labor contract with Mr. A.
Ask:
Ms. Y works for a foreign company and signed a contract with a term of 2 years from December 2019 to December 2021. Suppose, in 2021, Ms. Y is pregnant and gives birth in November 2021. So, until the expiration of the labor contract (December 2021), does the company have the right to terminate the contract with Ms. Y?
Reply:
Clause 3, Article 137 of the Labor Code 2019, which took effect on January 1, 2021, stipulates: “The employer must not dismiss or unilaterally terminate the labor contract with the employee for any reason. marriage, pregnancy, maternity leave, raising a child under 12 months old, unless the employer being an individual dies, is declared by a court to have lost civil act capacity, is missing or has died, or The employer who is not an individual terminates its operation or is notified by a specialized business registration agency of the People’s Committee of the province that there is no legal representative or authorized person to exercise the right to and obligations of the legal representative.
In case the labor contract expires while the female employee is pregnant or raising a child under 12 months old, the priority shall be given to entering into a new labor contract.
– Clause 1, Article 34 of the Labor Code provides for the termination of the labor contract upon the expiration of the labor contract.
In the above situation, Ms. Y’s labor contract valid from December 2019 to December 2021 is a labor contract with a definite term of 2 years. Can be handled in the following 2 cases:
Case 1: Before the labor contract expires, if Ms. Y wishes to continue working at the company, the employer must prioritize entering into a new labor contract with Ms. Y.
Case 2: If before the expiration of the labor contract, the two parties do not have any agreement in writing, the company has the right to terminate the labor contract with Ms. Y whether is pregnant or not.
Therefore, to ensure her rights, before the contract expires, Ms. Y should request and specifically agree with the employer to continue signing the labor contract if both parties have a need.
