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Legal issues when an employee requests to cancel an employer’s layoff in Vietnam

The outbreak of the Covid-19 pandemic caused many employers and employers to close their businesses and lay off employees in Vietnam. Thus, when being asked to quit, can the employees raise a claim to stop the lay-off and if so, in which circumstances?

Firstly, the employer allows the employee to stop working for a reasonable period of time or suspend the contract as agreed upon in accordance with Article 30 of the Vietnam Labor Code. Both of these cases are based on the agreement of both the employer and his staff. Therefore, after the end of the layoff period or the temporary suspension of the contract, the employer must take back the employee, and in the case of difficulties, the company still has to close and the employees are forced to stop their work, the employer will continue to negotiate with his or her employees.

Secondly, the employer let the employee quit his work in the case of unilateral termination of the contract because of production reduction according to article c, clause 36 of the Labor Code. In case the employer unilaterally terminates the contract because of production reduction, according to the law, the obligations of the employer in this case of unilateral termination are the obligation to prove that all measures have been taken but still forced to downsize production, reduce workload, and the obligation to notify employees in advance of unilateral termination of the contract. Thus, if the employer fails to fulfill either of these two obligations, the employee can request the employer to accept him back to work or if not, the employee can sue in court to ask the employer to accept her back.

Thirdly, the employer lays off the employee in case the company changes the structure according to Article 42 of the Labor Code. Before laying off employees, employers need to fulfill the following obligations:

  • Must develop a plan to use labor according to Article 46 of the Labor Code, in case of new works, priority must be given to employees for training.
  • In the event that new work cannot be arranged for an employee, the employer must discuss with the representative organization of the labor collective at the establishment, and
  • Notify 30 days in advance of the Provincial People’s Committee and to the employees.

Thus, when the employer fails to perform one of the above obligations, the employer cannot leave his or her employees in accordance with this regulation. If an employee is terminated due to a breach of these obligations by the employer, the employee may request the employer to stop this and return the employee to work.

In addition, both employers and employees can contact a reputable law firm to receive advice, in-depth answers to labor and employment issues during the Covid period.

Doan Vu Hoai Nam, Associate of ASL LAW

ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.

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