IS A COMPANY ALLOWED TO KEEP THE DIPLOMAS AND CERTIFICATES OF EMPLOYEE QUITTING JOB?

My name is Nguyen Thi T.T currently living and working in Da Nang city. I work at an accounting firm under a definite-term labor contract. Currently, due to my family difficulties, I want to quit my job for working abroad. Not agreeing with my reason for quitting my job, the company did not return the original of my diploma and certificate. I would like to know about the law regulations providing this issue. Can I quit my job with the above reasons? If it's against the law, what will be the penalty for the company?

Looking forward to your consulting service!

FDVN’s opinions:

Thank you for concerning FDVN legal services. Base on your consulting requirements, after studying the legal documents, FDVN Law Firm offers the following advice:

[1]. Legal provisions on prohibited acts of employers when entering into and performing labor contracts:

Pursuant to Article 20 of Labor Code 2012 on the prohibited acts of employers when entering into and performing labor contracts:

“1. Keeping the employees’ original identity cards, diplomas, and certificates.

2. Requesting employees to make a deposit in cash or property as security for the performance of labor contracts”.

Thus, according to the regulation mentioned above, employers keeping the employees’ original identity cards, diplomas, and certificates is considered violating the laws.

Pursuant to point d, Clause 1, Article 37 of Labor Code 2012 the right of employees to unilaterally terminate labor contracts: “He/she is unable to continue performing the labor contract due to personal or family difficulties”.

Besides, According to Clause 2, Article 7 of the Decree No. 05/2015/NĐ-CP defining and providing guidance on the implementation of a number of contents of the Labor Code:

“2. The employee shall have the right to unilaterally terminate the employment contract at Point d, Clause 1, Article 37 of the Labor Code in the following cases:

a) Quit the job to take care of their spouse, father, mother, father-in-law, mother-in-law, natural children and adopted children who are sick or involved in accidents;

b) Leave for foreign countries to live or work;

c) Help their families that are in trouble with natural disasters, conflagration, hostility, enemy-inflicted destruction, epidemics or relocation which the employee tries to overcome but cannot continue to execute the employment contract.”

Thus, the reason for the termination of your labor contract is in accordance with the current law provisions. You have the right to terminate the labor contract.

Besides, According to Article 47 of Labor Code 2012 on the responsibilities of an employer in case of terminating labor contracts that:

“1. At least 15 days before the date of the expiry of a definite-term labor contract, the employer shall give a written notice of the time of termination of the contract to the employee concerned.

2. Within 7 working days after termination of a labor contract, the two parties shall make all payments related to the interests of each party; in special cases, this time limit may be extended but must not exceed 30 days.

3. The employer shall complete the confirmation procedure and return the social insurance book and other papers of the employee which are kept by the employer.

4. In case an enterprise or a cooperative has its operation terminated, is dissolved or goes bankrupt, the payment of wages, severance allowances, social insurance, health insurance, unemployment insurance, and other benefits of its employees according to the collective labor agreement and signed labor contracts will be prioritized.”

Thus, the Company, within 07 days from the date of termination of the labor contract, has to pay the full amount of the salary and return your diploma and certificate and other documents to you.

[2] Sanctions for the act of keeping the original diplomas, qualifications and certificates of employer

Pursuant to Clause 2, Article 5 of the Decree No. 95/2013/NĐ-CP on the penalties for the administrative violations against the regulations on labor, social insurance, and overseas manpower supply:

“2. The employer shall be liable to a fine of from 20,000,000 VND to 25,000,000 VND when committing one of the following acts:

a) Keeping the original copies of ID papers, qualifications and certificates of workers;

b) Forcing workers to put up money or other assets as collateral for the execution of labor contracts.

3. Remedial measures:

a) Compelling the return of the ID papers, qualifications and certificates to the workers, applicable to the violations in Point a Clause 2 of this Article;

b) Compelling the return of the money or assets to the workers, together with an interest on the money at the maximum rate of interest on demand deposits announced by the State bank of Vietnam when the violation is imposed, applicable to the violations in Point b Clause 2 of this Article.”

Above is FDVN Law Firm's opinion based on studying the relevant legal provisions. We hope that this opinion will be useful for you.

Legal advisor Dinh Thi Thong - FDVN Law Firm

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