As an employer, there will be many cases when you want to fire an employee. This might be due to their poor performance in their position, or the business is coming across a huge change in its corporate structure or forced to cut some unimportant positions to relieve the burden due to the Covid-19 pandemic, etc. Nonetheless, there will be all kinds of reasons but when being in the position of forcing to fire their employee, some employers might not know what is the best route to take. So, what are the notes the employer needs to know when firing the employees in Vietnam?
From the employer’s point of view, it will be much easier if the employee does not know or know but does not truly understand the Labor Code of Vietnam – their rights and privileges.
However, as society is developing rapidly with the booming of technology, access to the law of normal citizens isn’t as hard as in the old days anymore.
Accordingly, nowadays, the employees are fully equipped with the knowledge of the Labor Code as well as their rightful rights in a working relationship.
So, how does an employer fire an employee if they understand their rights according to the Labor Code of Vietnam?
Negotiate to write a resignation letter
First of all, to uncomplicated matters, the employer should sit down with the employee to talk about their overall performance at the company.
The negotiation technique is secret and unique to each employer. However, as one has reached the position of an employer or a business owner, they should have had adequate experience on this matter.
Nonetheless, to negotiate or persuade the employee to voluntarily write a resignation letter, the employer should, firstly, talk about the overall performance of them at the company, mainly about how their performance is going down and it is affecting the company’s operation, etc.
Then, the employer will give the employee the chance to withdraw from the company in a peaceful way cause firing is the last resolve that nobody wants, both for the employee and the employer.
However, if a peaceful solution is not available and the employee is, to some extent, ‘stubborn’ and cling to his rights, the employer will have no other choice but to consult the law, specifically the Labor Code 2019, to lay off their employee.
Transfer of employees to work in a different position
If the employee performs badly at a certain position, the employer might consider transferring him/her to a different position to check if their performance can be improved.
This is also a test period in which the employee can prove that he/she is still suitable to work in the company.
However, transferring an employee to another position can’t just be done according to the employer’s will.
Because this is not the position that the employee signs up for in the labor contract, the employer can only transfer the employee to another position if the following conditions are met:
- In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the labor contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.
- In case of temporary reassignment of an employee, the employer shall inform the employee at least 03 working days in advance, specify the reassignment period and only assign works that are suitable for the employee’s health and gender.
- The reassigned employee will receive the salary of the new work. If the new salary is lower than the previous salary, the previous salary shall be maintained for 30 working days. The new salary shall be at least 85% of the previous salary and not smaller than the minimum wages.
- In case the employee refuses to be reassigned for more than 60 working days in 01 year and has to suspend the employment, he/she shall receive the suspension pay from the employer in accordance with Article 99 of the Labor Code.
Unilaterally terminate the labor contract
According to Article 36 of the Vietnam LaborLaw 2019, the employer will have the right to unilaterally terminate the labor contract in the following cases:
a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);
b) The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of fewer than 12 months.
Upon recovery, the employer may consider concluding another labor contract with the employee;
c) In the event of a natural disaster, fire, major epidemic, hostility, relocation, or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;
d) The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Law;
dd) The employee reaches the retirement age specified in Article 169 of the Labor Code unless otherwise agreed by the parties;
e) The employee quits his/her fails to go to work without acceptable excuses for at least 05 consecutive working days;
g) The employee fails to provide truthful information during the conclusion of the labor contract in accordance with Clause 2 Article 16 of the Labor Code in a manner that affects the recruitment.
When unilaterally terminating a labor contract, the employer must notify the employee in advance:
a) at least 45 days in case of an indefinite-term employment contract;
b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
c) at least 03 working days in the case of an employment contract with a fixed term of fewer than 12 months;
Dismissal for disciplinary reasons
One of the most used reasons to lay off an employee in normal circumstances is that the employee fails to achieve the work performance that they have agreed to in the labor contract, meaning they have conducted a disciplinary violation.
However, not just failure to achieve the requirement in the work performance, the employee might also be fired legally by the employer in the following circumstances:
- The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries, or uses drugs at the workplace;
- The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or pose a seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
- The employee repeats a violation that was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation that was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.
- The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Justified reasons include natural disasters, fires; the employee or his/her family member suffering from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
The principles and procedures for taking disciplinary measures, firing the employee in Vietnam
If the employee is fired according to the above 4 disciplinary cases, the following procedures must be followed:
a) The employer is able to prove the employee’s fault;
b) The process is participated in by the representative organization of employees to which the employee is a member;
c) The employee is physically present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present;
d) The disciplinary process is recorded in writing.
However, the employer should also be noted that it is prohibited to impose more than one disciplinary measure for one violation of internal labor regulations.
When an employee concurrently commits many violations of labor discipline, only the highest form of discipline corresponding to the heaviest violation shall be applied.