Question:
I have been working in Vietnam from 2005. My previous job was in Hai Phong, I have no issues with my employment there, legally. Recently, I decided to move to Hanoi, new company but unfortunately, not a good decision though.
I started there on 19th April 2018, as a Technical Manager, they gave me the contract. After three weeks, they asked me to do jobs for operator, I refused to do so as for me this in an insult on me. From there, I had conflict with the employer. I stayed until the 5th week, one of the owner called me and said I can stop working from there company right then and there therereason i cannot execute the job.
I felt that my right as an employee was exploited, I want just fair, I am not asking for any too much from there, just my security when they did that to me, it is like it is so inhumane, without due process, which I believe is afainst the labor law of Vietnam.
Please help me to do te next step.
Answer:
Dear Sir/Madam,
I am Lawyer of SB Law. I was entrusted to provide you legal advice regarding to labor dispute. Please find our answers here under:
According to the information provided by you, the employer transferred you to work that does not fit your profession, not the job specified in the contract. Then, the employer has unilaterally terminated labor contract with you on the reason that you had not completed the works. According to the provisions of the Labor Code 2012, the above behavior of the employer is against the law.
Firstly, to claim benefits for employees when the employer unilaterally terminates the labor contract illegally:
– You can submit the application directly or through the trade union to complain to the business leaders to request to continue to comply with the signed labor contract.
– If the trade union’s participation is not effective, you can submit a lawsuit against the employer to the People’s Court to protect your rights.
Secondly, Article 42 of the Labor Code provides for Obligations of an employer when unilaterally terminating a labor contract illegally as follows:
“1. To reinstate the employee in accordance with the original labor contract; to pay the wage and social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least 2 months’ wage in accordance with the labor contract.
2. In case the employee does not wish to return to work, in addition to the compensation stipulated in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 48 of this Code.
3. In case the employer does not want to reinstate the employee and the employee agrees, in addition to the compensation stipulated in Clause 1 of this Article and the severance allowance stipulated in Article 48 of this Code, the two parties shall negotiate on an additional compensation which must be at least equal to 2 months’ wage in accordance with the labor contract in order to terminate the labor contract.
4. In case the position or job agreed in the labor contract is no longer vacant and the employee still wishes to work, the employer shall pay the compensation stipulated in Clause 1 of this Article and both parties shall negotiate to modify and supplement the labor contract.
5. If violating the provision on the time of prior notice, the employer shall compensate the employee an amount equivalent to his/her wage for the working days without prior notice”.
