Is it legal to dismiss an employee who is raising a child under 12 months old?

I am currently raising a baby under 12 months old. Because I was too busy and suffered the pressure when taking care of my baby, I had taken a week off from work without notifying the Company. The Director of the Company decided to discipline me with dismissal. May I ask if it complies with the labor laws?

FDVN’s Opinion

According to Article 125 of Labor Code 2019  on dismissal for disciplinary reasons:

“An employer may dismiss an employee for disciplinary reasons in the following circumstances:

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 cited regulation, if the employee fails to go to work for a total period of 05 days in 30 days, the dismissal shall be imposed.

According to the information you provided, you are raising a child under 12 months old. It is stipulated in Point d, Clause 4, Article 122 of the Labor Code 2019, no disciplinary measure shall be taken against an employee:

“Being pregnant, on maternal leave or raising a child under 12 months of age”.

 The labor discipline in case of employees raising children under 12 months old shall comply with Article 29 of Decree No. 05/2015/ND-CP dated January 12, 2015 detailing and guiding some articles of the Labor Code.

“Handling violations against labor discipline imposed on the employees raising children under 12 months of age

1. The employer shall not handle violations against labor discipline for the employees being the fathers or mothers or legal adoptive fathers or mothers raising children under 12 months of age.

2. When the time of raising children under 12 months old has run out, if the statute on limitations to such handling has expired, it shall be prolonged, but not exceeding 60 days after the time of raising children under 12 months of age runs out.”

Thus, although your violation is subject to labor discipline, the employer is not allowed to handle labor discipline. Disciplinary action to dismiss an employee raising a child under 12 months of age is considered a violation of the labor law.

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