EMPLOYEES ABSENT FROM WORK FOR SEVERAL DAYS WITHOUT PERMISSION: WHAT SHOULD EMPLOYERS DO?
Dismissal: Should or should not?
Article 126.3 of the 2012 Labor Code stipulates circumstances in which an employer can dismiss an employee. One of them is: "The employee is absent from work for 05 working days in total within a month or 20 working days in total within a year without permission and plausible reasons." Accordingly, there are three conditions that the employer must take into account prior to dismissal:
(1) Period of absence: 05 working days in total within 30 days, or 20 working days in total within 356 days, from the first day of unauthorized absence;
(2) Without permission from the employer;
(3) Without plausible reasons. "Plausible reasons" consist of:
Natural disasters, fire;
Illness of the employee or his/her parents, adoptive parents, parents inlaw, spouse, children, legally adopted children with certificates issued by a diagnosis or treatment establishment which is established and operated according to law;
Other reasons approved by the employer and specified in its internal labor regulations.
However, in actual practice it is difficult to have a dismissal based on employee absences which will be considered legitimate by a court of law. The reason is that it is especially problematic to prove that the reasons for the employee's absence are implausible and that the dismissal is reasonable and conducted in accordance with legal procedures. This will be illustrated by the following case:
In a dispute settled by the People's Court of Ba Ria - Vung Tau Province and stated in Judgment No.02/2018/LD-PT1 dated May 08, 2018, the Court revoked the dismissal decision of the employer because: (1) the employee's violation was not serious enough to be subjected to a dismissal, and the employer was also at fault due to its incoherent procedure in approving leave applications and (2) the employer's disciplinary process against the employee was not in compliance with the law. Specifically, the People's Court of Ba Ria Vung Tau Province ruled that:
1 See Judgment No.02/2018/LD-PT HERE (in Vietnamese).
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EMPLOYEES ABSENT FROM WORK FOR SEVERAL DAYS WITHOUT PERMISSION: WHAT SHOULD EMPLOYERS DO?
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"[...] at the appellate trial, Mr. N, who represented Company H, admitted Company H's regulations did not stipulate that its HR Department had to create a handover record when receiving a leave application from an employee. Therefore, Company H had no objective grounds to release its HR Department from their responsibilities as well as to conclude that it was completely Mrs. H's fault that the HR Department did not receive her leave application. This indicates that the employer's (Company H's) procedure of approving the employee's (Mrs. H's) leave application was not coherent, which resulted in a lack of verifiable compliance in the employer's (Company H's) disciplinary process against the employee (Mrs. H) based on the ground that `the employee was absent from work for 05 working days in total within 30 days from the first day of unauthorized absence... without permission and plausible reasons' stipulated in Article 26.9 of the Company H's Internal Labor Regulations."
[...] although Mrs. H was negligent since she took leave before obtaining a written approval from Company H, Company H cannot deny the fact that to continue the business activities of the International Marketing Department while Mrs. H was on her leave, Mrs. H was required to inform her immediate supervisor of her leave plan 14 days in advance so as to plan the business schedule for the International Marketing Department. Therefore, the extent of Mrs. H's fault was solely negligence in complying with the leave application procedure. She did not intentionally or willfully disrespect Company H's internal rules, regulations or policies. As a result, Mrs. H's violation was not serious enough to merit the most severe punishment which is dismissal.
During the Company's disciplinary meeting against Mrs. H the fact that Mrs. L made a "self-statement" confirming that she helped Mrs. H fulfil the leave procedure was not taken into account by Company H. In addition, Company H continued with the discipline of Mrs. H without the minutes of the disciplinary meeting with the participation of the collective employees of the International Marketing Department. Therefore, based on all objective and subjective elements, and because the extent of Mrs. H's violation was not reasonably assessed by Company H, that Company H disciplined Mrs. H with the most severe measure of dismissal is not satisfactory, objective, comprehensive or adequate."
Nevertheless, a dismissal is still possible provided that the employer has coherent internal labor regulations and fully satisfies all requirements of the disciplinary process prescribed by law. An illustration of such is a dispute settled by the People's Court of Binh Duong Province and confirmed in Judgment No.30/2018/LD-PT2 dated November 27, 2018. Even though the employee provided certificates of taking leave claiming to be entitled to a social insurance allowance with the reasons of "digestive disorders, sore throat or bronchitis, (or) looking after ill children...", the Court nevertheless ruled that the employer's dismissal was legal as the employer successfully proved that it had strictly complied with the disciplinary process as prescribed by law. In this case the employer had clearly enumerated the leave application process and grounds for dismissal in the internal labor regulations, a written record was made that the employee had taken leave without notice and permission, and disciplinary meeting invitations were sent 03 times via registered
2 See Judgment No.30/2018/LD-PT HERE (in Vietnamese).
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EMPLOYEES ABSENT FROM WORK FOR SEVERAL DAYS WITHOUT PERMISSION: WHAT SHOULD EMPLOYERS DO?
mail having evidence of receipt at the employee's address. In addition, the disciplinary meeting had the requisite objective participation of the representative of the collective employees and the Trade Union at the higher level, the person conducting the labor disciplinary meeting and the person signing the dismissal decision had full authority, and the employer couriered the dismissal decision to the employee in compliance with the law.
Therefore, it is possible for employers to dismiss employees in a legal manner. However, it poses a risk to employers since the dismissal decision could be considered illegal if there is a minor mistake during the disciplinary process. Article 33.3 of Decree No.05/2015/ND-CP stipulates that the consequences of an illegal dismissal are the same as those of an illegal unilateral termination of a labor contract by an employer. Should an illegal termination occur, the employer must:
Reinstate the employee;
Pay salaries, the premiums of social insurance, health insurance for the days the employee was not allowed to work;
Compensate at least 02 months' salary due to illegal dismissal;
Pay a severance allowance to the employee if the employee does not wish to continue working for the employer;
Additionally, pay a compensation in an amount agreed to by both parties, but at least the equivalent of 02 months' salary should the employer not wish to reinstate the employee and the employee agrees to forgo working in the same position.
Employers unilaterally terminating a labor contract: can or cannot?
The provision that "the employee is absent from work for 05 working days in total within a month or 20 working days in total within a year without permission and plausible reasons" is not one of direct grounds that allows an employer to unilaterally terminate a labor contract with an employee. If an employer wishes to unilaterally terminate a labor contract, the employer should consider more secure grounds for termination such as "the employee regularly fails to perform his/her job stated in the labor contract" stipulated in Article 38.1.(a) of the 2012 Labor Code. However, in order to apply such provision, the employer must specifically stipulate the criteria for assessment of work completion in its internal regulations. Such assessment regulations shall be issued by the employer after consulting with the representative organization of the collective employees at the grassroots level. See our further analysis on this topic HERE.
The 2019 Labor Code (which will come into effect on January 01, 2021) entitles an
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EMPLOYEES ABSENT FROM WORK FOR SEVERAL DAYS WITHOUT PERMISSION: WHAT SHOULD EMPLOYERS DO?
employer to unilaterally terminate a labor contract with an employee who "is absent from work without permission and plausible reasons for 05 consecutive working days or more". However, the period of the employee's unauthorized absence must be "consecutive", which is different from a dismissal case in which the days of unauthorized absence are accumulated within a month or a year. At present, there is no regulation specifically guiding the implementation of the 2019 Labor Code regarding this issue.
Alternatives?
An employer may treat an employee's unauthorized absence as his/her act of unilateral termination of his/her labor contract. Accordingly, the employer should:
(1) Create a written record of the fact that the employee has not been present at work (the writing should contain the signatures of at least two witnesses);
(2) Send a written announcement via registered mail (with advice of receipt) to the employee's address to notify the employee of his/her unauthorized absence and request him/her to return to work;
Note:
The written announcement must not include any contents that state, or could be interpreted as stating, that the employer will unilaterally terminate the labor contract if the employee does not return to work;
In case the written announcemen could not be delivered to the employee (for example, due to a false address, the employee's refusal to receive the announcement, or other reasons), the employer needs to request that the post office issue a written confirmation of the reason why the delivery has failed;
If there is a successful delivery, the employer needs to request that the post office provide an advice of receipt which has the recipient's full name and signature; and
The employer should retain the following records: (1) a copy of the written announcement delivered to the employee, (2) all of bills of consignment having the full signature of the sender and courier (and the post office's stamp if any), (3) all documents showing advice of receipt or written confirmation of the reason why the delivery has failed, which are provided by the post office, and (4) the original written announcement (including the envelope) returned by the post office.
(3) Withhold the salary of the employee during the period the employee was absent from work;
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EMPLOYEES ABSENT FROM WORK FOR SEVERAL DAYS WITHOUT PERMISSION: WHAT SHOULD EMPLOYERS DO?
(4) Withhold the premiums of social insurance for the employee during the months in which the employee does not work for 14 working days or more;
(5) If the written announcement is sent and received, but the employee still does not return to work, issue a written confirmation of the termination of the labor contract due to the employee's illegal unilateral termination and settle the employee's relevant benefits as prescribed by law;
Note:
This written confirmation is only allowed to be sent after the expiry of the period prescribed by law, during which the employee has the opportunity to inform the employer in advance of his/her unilateral termination of the labor contract (45 days for indefinite-term labor contracts or 30 days for definite-term labor contracts); and
The contents of the written confirmation shall state that the employee's illegal unilateral termination is the reason for the termination of the labor contract. There must be no contents which state, or could be interpreted as stating, that the employer is the one who unilaterally terminated the labor contract.
(6) The employer's managers or persons in charge should not have any personal communication with the employee via phone, message, email, or other online communication channels. In case the employee personally contacts such managers or persons in charge, those people should not reply to the employee and the employer should consult legal professionals who will formulate appropriate solutions which will not pose risks to the employer.
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UPDATES ON LABOR LAW FROM MAY 01, 2020 TO JUNE 14, 2020
1 IMPLEMENTATION OF THE LAW
No. Issuing
Type of Serial number
Date of
Effective date/
Main contents
authority document
issuance Implementation
date
1 Inspectorate Inspection 51/KL-TTr April 09, 2020 April 09, 2020 Inspection report
of Ministry
report
52/KL-TTr
on the observance
of Labor
53/KL-TTr
of legislations
Invalids and
54/KL-TTr
on training in
Social Affairs
58/KL-TTr
occupational safety
("MOLISA")
59/KL-TTr
and health at some
60/KL-TTr
units.
62/KL-TTr
Click here to see the contents.
2 LEGISLATION
No. Issuing
Type of Serial number
Date of
Effective date/
Main contents
authority document
issuance Implementation
1 Government
date Decree 61/2020/ND-CP May 29, 2020 July 15, 2020 Amending and
supplementing
several articles of
Decree No.28/2015/
ND-CP dated March
12, 2015 issued by
the Government
stipulating in detail
implementation of
several articles of
the Employment
Law regarding
unemployment
insurance.
2 Government
Decree
58/2020/ND-CP May 27, 2020
July 15, 2020
Click here to see the contents.
Stipulating rates of compulsory social insurance contributions to the Insurance Fund of occupational accident and disease.
Click here to see the contents.
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No. Issuing
Type of
authority document
1 Department of Labor - Invalids and Social Affairs of Ho Chi Minh City
Official Letter
3 DIRECTIVES
Serial number
Date of issuance
13413/ SLDTBXHVLATLD
May 29, 2020
Effective date/ Implementing
date May 29, 2020
Main contents
Supporting foreigners who are investors, technical experts, skilled workers, enterprise managers in entering Ho Chi Minh City to work.
2 Government Resolution
79/NQ-CP
May 25, 2020
May 25, 2020
Click here to see the
contents.
List of countries whose citizens are granted Vietnam electronic visas; list of international border gates that allow foreigners to enter and exit with Vietnam electronic visas.
3 Vietnam Social Insurance Authority
Official Letter
1391/BHXH-BT May 06, 2020
May 06, 2020
Click here to see the contents.
Implementation of some contents of Resolution No.42/ NQ-CP and Decision No.15/2020/QD-TTg.
Click here to see the contents.
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4 MOLISA
5 Ho Chi Minh City Social Insurance Agency
Official Letter
Official Letter
1511/LDTBXH- May 04, 2020 BHXH
May 04, 2020
Instructions on temporary cessation of contributions to the fund of pension and death benefit.
906/BHXH-QLT April 28, 2020
April 28, 2020
Click here to see the
contents.
Procedures for confirming the list of employees temporarily suspending labor contracts or taking unpaid leaves because enterprises face difficulties caused by the Covid-19 pandemic.
Click here to see the contents.
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No. Drafting
Type of
authority document
1 MOLISA Circular
2 MOLISA
Decree
3 MOLISA
Decree
4 DRAFT LEGISLATION
Version
Starting date
of collecting
comments 1 June 11, 2020
Expiry date of collecting comments August 11, 2020
Main contents
Stipulating the List of potentially unsafe products and goods subject to the State management responsibility of the Ministry of Labor Invalids and Social Affairs.
Click here to see the contents.
1 June 03, 2020 August 03, 2020 Stipulating in detail the implementation of several articles of the Labor Code regarding labor dispute resolution.
Click here to see the
contents.
1 May 27, 2020 July 27, 2020 Stipulating in detail the implementation of several articles of the Labor Code regarding labor management, labor contracts, salaries, labor discipline, material responsibility.
Click here to see the contents.
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4 MOLISA
Decree
5 MOLISA
Decree
6 MOLISA
Decree
7 MOLISA
Decree
1 May 27, 2020 July 27, 2020 Regulations on employees who are domestics under Article 161.2 of the Labor Code.
Click here to see the contents.
1 May 13, 2020 July 13, 2020 Regulations on holding dialogue and promoting grassroots democracy at the workplace.
Click here to see the contents.
1 May 04, 2020 July 04, 2020 Regulations on retirement age and conditions for pension entitlements.
Click here to see the contents.
1 May 04, 2020 July 04, 2020 Stipulating the list of workplaces that strike is not allowed and labor dispute resolution in workplaces that strike is not allowed.
Click here to see the contents.
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8 MOLISA
Decree
9 MOLISA
Decree
10 MOLISA
Decree
1 May 04, 2020 July 04, 2020 Stipulating in detail and guiding the implementation of the Labor Code regarding depositing money for, conditions, process and procedures for granting, re-granting, extension and revocation of License of labor subleasing service and the list of jobs that are allowed to sublease labors.
Click here to see the contents.
1 April 29, 2020 June 29, 2020 Regulations on foreign employees working in Vietnam.
Click here to see the contents.
1 April 27, 2020 June 27, 2020 Regulations on recruitment and management of Vietnamese workers working for foreign organizations or individuals in Vietnam.
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11 MOLISA
Decree
12 MOLISA
Circular
13 Ministry of Health
Circular
1 April 06, 2020 June 06, 2020 Stipulating in detail several articles of the Labor Code regarding working time and break time.
Click here to see the contents.
1 April 06, 2020 June 06, 2020 Statistics on and declaration of occupational accidents and technical incidents severely affecting occupational safety and health.
Click here to see the contents.
1 May 06, 2020 July 04, 2020 Instructions on the implementation of health insurance.
Click here to see the contents.
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