Can the company dismiss an employee who is on sick leave as prescribed by a doctor in Vietnam? What are administrative penalties for dismissal an employee who is on sick leave as prescribed by a doctor in Vietnam? If an employee is married, can the employer dismiss this employee in Vietnam?
Hi, I have a problem that needs to be answered. I just had to be hospitalized for appendicectomy on 24/03, then the doctor told me to stay in the hospital for 5 days for observation. I informed the company but the company said they will dismiss me if I take 5 days off. May I ask if my company has the right to dismiss me when I am on sick leave as prescribed by the doctor? If not, What are administrative penalties for the company?
Please advise. Thankyou.
In Article 125 of the Labor Code 2019 stipulates dismissal for disciplinary reasons as follows:
An employer may dismiss an employee for disciplinary reasons in the following circumstances:
1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.
4. 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 suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
Thus, according to the above provisions in Vietnam, the employer has the right to dismiss the employee who fails to go to work for a total period of 05 days in 30 days without acceptable excuses.
If you take 5 days off work to take sick leave in Vietnam as prescribed by the doctor, you have the main reason, so it is against the law for the company to dismissyou. Note that you must have a certification by a competent health facility you are treating for as a basis.
According to Clause 3, Article 19 of Decree 12/2022/ND-CP, violations against regulations on labour discipline and material responsibility are as follows:
3. A fine ranging from VND 20.000.000 to VND 40.000.000 shall be imposed upon an employer for commission of one of the following violations:
a) Harming the employee's health, life, honor or dignity when imposing disciplinary measures in the workplace if not liable to criminal prosecution;
b) Applying monetary fines or deducting the employee’s salary wage instead of disciplinary measures;
c) Imposing a disciplinary measure against an employee for a violation which is not stipulated in the internal labour regulations or employment contract or labour laws;
d) Imposing more than one disciplinary measure for one violation;
dd) Imposing disciplinary measures against an employee during the period when he/she is taking leave on account of illness or convalescence, or on other types of leave with the employer’s consent; he/she is being held under temporary custody or detention; he/she is waiting for verification and conclusion of the competent authority for acts of violations specified in Clause 1 and Clause 2 Article 125 of the Labour Code.
Pursuant to Clause 1, Article 6 of Decree 12/2022/ND-CP stipulating the fine levels as follows:
1. The fines for administrative violations prescribed in Chapter II, Chapter III and Chapter IV of this Decree shall be imposed upon violating individuals, except the fines in Clauses 1, 2, 3, 5 Article 7, Clauses 3, 4, 6 Article 13, Clause 2 Article 25, Clause 1 Article 26, Clauses 1, 5, 6, 7 Article 27, Clause 8 Article 39, Clause 5 Article 41, Clauses 1 through 12 Article 42, Clauses 1 through 8 Article 43, Clauses 1 through 6 Article 45, Clause 3 Article 46 of this Decree. The fine imposed upon an organization is twice as much as that imposed upon an individual for committing the same administrative violation.
Therefore, according to the above regulations in Vietnam, if your company still dismisses you because you take a 5-day sick leave as prescribed by a doctor, your company will be fined from VND 40,000,000 to VND 80,000,000.
Clause 3, Article 137 of the Labor Code 2019 provides for maternity protection as follows:
3. The employer must not dismiss an employee or unilaterally terminate the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operation, declared by a provincial business registration authority that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations.
Upon expiration of the employment contract with female employee who is pregnant or nursing a child under 12 months of age, conclusion of a new employment contract shall be given priority.
Thus, according to the above provisions in Vietnam, the employer is not allowed to dismiss the employee for the reason of marriage, except for the other cases prescribed by the law mentioned above.
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