COMPENSATION FOR UNILATERAL TERMINATION OF LABOR CONTRACT

I have been working under an indefinite – term labor contract for MA Co., Ltd. for 10 years. The social insurance premiums have been paid by the company. In early June 2019, the Company issued a decision to unilaterally terminate the labor contract but did not specify the reason and did not send me any advanced notice. I want to ask if MA Co., Ltd.’s unilateral termination of this labor contract is illegal. Besides, I don’t want to return to work for this company and I want to be compensated. I hope that FDVN Law Firm can give me an advice soon.

Sincerely thank you!

FDVN’s opinion:

Sincerely thank you for concerning our legal consulting service. We are glad to give you our advice on your question.

According to Article 42 of the Labor Code 2012 regulating on obligations of an employer when unilaterally terminating a labor contract illegally:

“1. To reinstate the employee in accordance with the original labor contract; to pay the wage and social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least 2 months’ wage in accordance with the labor contract.

2. In case the employee does not wish to return to work, in addition to the compensation stipulated in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 48 of this Code.

…

5. If violating the provision on the time of prior notice, the employer shall compensate the employee an amount equivalent to his/her wage for the working days without prior notice.”

It is stipulated in Article 48 of the Labor Code 2012 that:

 “1. In case a labor contract terminates in accordance with Clause 1, 2, 3, 5, 6, 7, 9 or 10, Article 36 of this Code, the employer shall pay a severance allowance to the employee who has worked regularly for full 12 months or longer at the rate of half of a month’s wage for each working year.

2. The working period used for the calculation of severance allowance is the total period during which the employee actually works for the employer minus the period during which the employee benefits from unemployment insurance in accordance with the Law on Social Insurance, and the working period for which the employee has received severance allowance from the employer.

3. The wage used for the calculation of severance allowance is the average wage in accordance with the labor contract for 6 months preceding the time the employee loses his/her work.”

According to the information provided by you and the Labor Code 2012, if MA Co., Ltd. terminated the labor contract between you and this company illegal and unilaterally, this company shall pay the following compensations:

 [1]. Paying the wage for the period during which you was not allowed to work;

 [2]. Paying social insurance and health insurance premiums for the period during which you was not allowed to work;

 [3]. Paying the least 2 months’ wage in accordance with the labor contract.

 [4]. Paying severance allowance.

A haft of the monthly salary will be paid for each working year. The salary as the basis for determination of severance pay or redundancy pay is the average salary specified in the labor contract of the 6 continuous months before the employee is laid off job-loss.

 [5]. Compensating an amount equivalent to your wage for the working days without prior notice.

According to Clause 3, Article 37 of the Labor Code 2012, the employee working under an indefinite-term labor contract may unilaterally terminate the labor contract provided that he/she informs such to the employer at least 45 days in advance.

In order to ensure your legitimate rights and interests, the evidence proving that the MA Co., Ltd. terminated the labor contract unilaterally and illegally must be collected so that you are able to file a lawsuit and ask this company to pay the aforementioned amounts.

Above are the advice of FDVN Limited Law Firm base on studying law provisions and theories. We hope that our opinions would be useful for you.

Legal Expert: Nguyen Thi Suong

FDVN Law Firm

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