From March 30, 2018 to May 13, 2018, the employee did not work and applied for sick leave (including those for benefiting social insurance but missing three days from April 26-28, 2018).

The employer decided to terminate the labour contract and confirmed the working process recorded in the social insurance book for the employee but did not pay job-loss allowance because the employee notified the employer of the termination only 42 days in advance.

On  June 6, 2018, the employee submitted health records, including doctor's recommendation, which said that he/she need to rest for three days from April 26-28, 2018, stamped with the seal of the hospital. However, the employee did not apply for leave with entitlement to social insurance benefit.

Through the system for receiving and responding to business’s petitions, Bui Thi Minh Chau from Doan Xa Port Joint Stock Company asked that in this case, does the company pay job-loss allowance for the employee?

If the three days stated in the health book  are not included in the above-mentioned 45 days due to ineligibility for social insurance benefit, does the employee have to compensate the company for those three days of working due to breach of regulations on the time for notifying the employer prior to the termination of the labour contract?

Regarding this issue, following is the response from the Department of Industrial Relations and Wage under the Ministry of Labour, Invalids and Social Affairs:

Per Clause 3, Article 37 of the Labour Code, an employee working under an indefinite term contract  is entitled to unilaterally terminate the labour contract, but must notify the employer at least 45 days in advance, except for cases regulated in Article 156 of the code.

According to Clauses 1 and 2, Article 43 of the Labour Code, in case of a unilateral termination of a labour contract in contravention of law, the employee will not receive any severance allowance and has to pay the employee an amount of money equivalent to half of the salary as agreed in the labour contract. If violating the regulations on advance notice, the employee will compensate the employer an amount of money equivalent to the salary of the employee during the days when no advance notice of the termination is received.

Article 48 stipulates that when the labour contract terminates in line with Clauses 1, 2, 3, 5, 6, 9 and 10 of Article 36, the employer is responsible for paying unemployment allowance for labourer who works permanently for 12 months. Each working year is equivalent to an amount of allowance worth half of the monthly salary.

Article 25’s Clause 1 under the Law on Social Insurance regulates that labourers entitled to sickness and accident which are not classified as labour accident are allowed to enjoy the sickness regime if they can show confirmation from a hospital or medical station.

According to Point a, Clause 1, Article 26 of the social insurance law, the maximum period for enjoying the sickness regime in a year for a labourer stipulating in Points A, B, C, D and H will be calculated according to working days, excluding public holidays, New Year holidays and weekends. For labourers working under normal conditions, it is 30 days if they have paid social insurance premium less than 15 years, and 60 days if they have paid social insurance premium for full 30 years or more.

Clause 1, Article 29 of the Law on Social Insurance regulates that an employee who has taken leave under the sickness regime for the full number of days in a year prescribed in Article 26 of the law, but whose health has not yet recovered within 30 days after return to work, is entitled to a leave of between five and 10 days in a year for rehabilitation.

Pursuant to this provision and the inquiry from Bui Thi Minh Chau, the employee working under a contract of indefinite duration has given 45-days advance notice to the company. In this period of time, she applied for a sick leave for convalesce and recovery. Therefore, the company must follow the provisions in Articles 25, 26 and 29 of the Law on Social Insurance to consider the case. In the case the company can prove that the employee has failed to satisfy the required period of notice before unilaterally terminating the labour contract, the employee must fulfill obligations prescribed in Article 43 of the Labour Law.

If the employee has terminated the labour contract in line with the laws, the company shall give severance pay as stipulated in Article 48 of the Labour Law.

International Cooperation Department