Tiếng ViệtDuring the maternity leave period, the Labor Contract expires but the Employer terminates the Labor Contract, is it illegal?
Normally, a female employee who is pregnant or raising a child under 12 months is a “special” subject that the employer needs to pay close attention to and be careful about when terminating the contract or taking disciplinary action by the Law. Vietnamese workers have very strict mechanisms to protect the rights of women and children. According to Clause 3, Article 37: The employer is not allowed to exercise the right to unilaterally terminate the labor contract with the pregnant female employee; the employee is on maternity leave or raising a child under 12 months old.
However, this is the provision for the case of unilateral termination of the labor contract. The case of expiration of the contract is one of the cases as a basis for the termination of the labor contract specified in Article 34 of the Labor Code 2019.
Article 34. Cases of termination of labor contracts
1. The employment contract expires, except for the case specified in Clause 4, Article 177 of this Code.
2. The work has been completed according to the labor contract.
3. The two parties agree to terminate the labor contract.
4. The employee is sentenced to prison but is not entitled to a suspended sentence or is not released under the provisions of Clause 5, Article 328 of the Criminal Procedure Code, or is sentenced to death, or is prohibited from doing the work specified in Article 328 of the Criminal Procedure Code. labor contract under a court judgment or decision that has taken legal effect.
5. Foreign employees working in Vietnam are expelled under legally effective court judgments or decisions, or decisions of competent state agencies.
6. The worker dies; has been declared by the Court to have lost his civil act capacity, is missing or has died.
7. The employer being an individual dies; has been declared by the Court to have lost his civil act capacity, is missing or has died. The employer who is not an individual terminates its operation or is notified by the specialized business registration agency of the People’s Committee of the province that there is no legal representative or authorized person to do so. rights and obligations of the legal representative.
8. The employee is disciplined and fired.
9. The employee unilaterally terminates the labor contract according to the provisions of Article 35 of this Code.
10. The employer unilaterally terminates the labor contract according to the provisions of Article 36 of this Code.
11. Employers terminate employees according to the provisions of Articles 42 and 43 of this Code.
12. The work permit expires for foreign employees working in Vietnam according to the provisions of Article 156 of this Code.
13. In case the probationary agreement is agreed upon in the labor contract, the probationer fails to meet the requirements or one party cancels the probation agreement.
In addition, in Clause 3, Article 137 of Maternity Protection, it is stated that:
An employer may not dismiss or unilaterally terminate an employee’s employment contract for reasons of marriage, pregnancy, maternity leave, or raising a child under 12 months of age, unless the employer The employee being an individual dies, is declared by a court to have lost his/her civil act capacity, is missing or dead, or the non-individual employer terminates his/her operation or is banned by a specialized business registration agency. The People’s Committee of the province shall issue a notice that there is no legal representative, the person authorized to perform the rights 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, she shall be given priority to enter into a new labor contract.
According to the above provisions, the employer is not allowed to dismiss or unilaterally terminate the labor contract with the employee for reasons of marriage, pregnancy, maternity leave, or raising a child under 12 months of age. The case of an expired labor contract is another case. The Labor Code 2019 also states: 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. However, the law uses the word priority, not the word mandatory.
Therefore, if the Labor Contract expires during pregnancy or raising a child under 12 months old (including the case during maternity leave) but the Employer does not renew the contract, Working with female workers is not against the law.
However, when terminating the labor contract, the employer needs to notify the employee in writing of the termination of the labor contract when the labor contract is terminated in accordance with Clause 1, Article 45 of the Labor Code 2019.
At the same time, when terminating the Labor Contract, the Employer needs to perform the following obligations (Article 48, Labor Code 2019):
1. Within 14 working days from the date of termination of the labor contract, the two parties are responsible for fully paying the sums related to each party’s interests, except for the following cases where it may be prolonged. but not more than 30 days:
a) The employer who is not an individual terminates the operation;
b) The employer changes the structure, technology or economic reasons;
c) Division, separation, consolidation, merger; sale, lease, change the type of business; transfer of ownership, right to use assets of enterprises or cooperatives;
d) Due to natural disaster, fire, enemy sabotage or dangerous epidemic.
2. Wages, social insurance, health insurance, unemployment insurance, severance pay and other benefits of employees under collective labor agreements, labor contracts are prioritized for payment. in case the enterprise or cooperative is terminated, dissolved or bankrupt.
3. Employers have the following responsibilities:
a) Complete the procedures for confirmation of the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other papers if the employer has kept them from the employee;
b) Provide copies of documents related to the employee’s working process if requested by the employee. The cost of copying and sending documents is paid by the employer.
