Advice to terminate contract labour ...

Question:

My sister is a market T. Nguyen worked at companies with 100% foreign capital, she worked for 7 years, indefinite term labor contract, but the date was 25/06/2011 sister company decision to terminate the labor contract without cause violates clearly. The editors would like me to ask, as the company's decision was right or wrong? Rights and interests of my sister. What is guaranteed?

Reply:

According to the information that you provide, we would be answered as follows:

+ At the legality of the decision to terminate the labor contract between the Company and Ms. T.

- Under the provisions of the Labour Code (LC), the employer (the employer) is only unilaterally terminate labor contracts with their employees in the cases specified in Clause 1, Article 38 of the Labor Law:

The employer has the right to unilaterally terminate the labor contract in the following cases:

a) Employees often do not complete the work under the contract;

b) The employee is disciplined layoff as defined in Article 85 of this law;

c) An employee who works under a labor contract of indefinite term illness were treated for 12 consecutive months, workers under labor contracts with indefinite term illness were treated for six consecutive months and the employee follow under a labor contract in the treatment of illness was half term of the labor contract, but not the ability to recover workers. When health workers recovered, shall be considered for the conclusion of labor contracts;

d) Due to the disaster, fire or other unforeseen reasons that the employer was looking all remedies must still shrinking production, cut jobs;

e) The enterprise, agency or organization terminates its operation.

Thus, the case of Ms. T. did not belong in those cases where the employer has the right to unilaterally terminate the labor contract.

- Time limit warning unilaterally terminate the labor contract in the case of Article 38 must comply with the following time limits (Clause 3, Article 38)

When unilaterally terminating labor contracts, unless otherwise stipulated in Point b, Clause 1 of this Article, the employer must notify the employee in advance:

a) at least 45 days for labor contract of indefinite term;

b) at least 30 days for labor contracts with indefinite terms from one year to three years;

c) at least three days for the contract and seasonal workers, according to a certain work of less than a year.

In the case of T. She has worked for 7 years, the company signed a labor contract of indefinite extension, if you want to terminate labor contracts with T. sister company must notify you at least 45 days

- On the other hand, as stipulated in Clause 1, Article 85 Labour Code, an employee may be dismissed in the following cases:

  Disciplined form of layoff shall be applied only in the following cases:

a) The employee has theft, embezzlement, disclosure of confidential technology, business or other acts causing serious damage to property and the interests of the business;

b) The employee is disciplined transferred to another job that recidivism pending cancellation of discipline;

c) The employee voluntarily quit work seven days in a month or 20 days a year without good reason.

              The Company terminated the labor contract with her T 1 without any reason, (no known cause). Thus, pursuant to Article 38 and 85 LC is totally wrong.

+ So the company decided to terminate labor contracts with Ms. T. illegally should be based on that 41 Labour Code, the rights and interests of Ms. T. will be resolved as follows:

- In case the employer to unilaterally terminate the labor contract must be received illegal workers to return to work and be compensated an amount corresponding to the wages of the day laborer is not working. In the event the employee does not want to go back to work, apart from the compensation amount corresponding to the salary of the working day, the employee an allowance as prescribed in Clause 1, Article 42 of the this law (paragraph 1, Article 41)

- Upon the termination of the labor contract for workers frequently worked in the enterprise, agency or organization for a year or more, the employer is responsible for severance allowance, for every year the half-month salary, salary plus allowances, if any. (Clause 1, Article 42)