EMPLOYEE IS HELD IN DETENTION - IS IT CONSIDERED AS A REASON TO TERMINATE THE LABOUR CONTRACT?

EMPLOYEE IS HELD IN DETENTION – IS IT CONSIDERED AS A REASON TO TERMINATE THE LABOUR CONTRACT?

During the term of labour contract, as several objective reasons, the company wants to unilaterally terminate the labour contract with the employee, and this is not an uncommon case. However, in fact, there are many cases where the company terminates the labour contract for unreasonable and illegal reasons. There is a rather special case where the employee is held in detention, which the company considers being a legitimate reason to terminate the labour contract. In this case, does the company have the right to unilaterally terminate the labour contract? In this article, Lac Duy & Associates will give you the answer to the above case.

Clause 1, Article 36 of the Labour Code 2019, effective from January 1st 2021, stipulates:

“1. An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:

a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfilment of duties established by the employer. The criteria for assessment of employees’ fulfilment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);

b) The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.

Upon recovery, the employer may consider concluding another employment contract with the employee;

c) In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;

d) The employee is not present at the workplace after the time limit specified in Article 31 of this Labour Code;

dd) The employee reaches the retirement age specified in Article 169 of this Labour Code, unless otherwise agreed by the parties;

e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

g) The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labour Code in a manner that affects the recruitment.”

It can be seen from above provisions that in the case of temporary detention, the company does not have the right to unilaterally terminate the labour contract. Therefore, the Company cannot consider this as a legitimate reason to terminate the labour contract with the above-mentioned employee. Instead, the Company can be pursuant to the provisions of Clause 1, Article 30 of the Labour Code 2019:

“1. Cases of suspension of an employment contract:

a) The employee is conscripted into the army or militia;

b) The employee is held in custody or detention in accordance with the criminal procedure law;

c) The employee is sent to a reformatory school, drug rehabilitation center or correctional facility;

d) The female employee is pregnant as specified in Article 138 of this Code;

dd) The employee is designated as the executive of a wholly state-owned single-member limited liability company;

e) The employee is authorized to representative the state investment in another enterprise;

g) The employee is authorized to represent the enterprise’s investment in another enterprise;

h) Other circumstances as agreed by both parties.”

According to this regulation, a temporary detention employee is subject to suspension of the labour contract and if the labour contract is still valid, after the employee ends the temporary detention period, the company must accept the employee to return to work according to the provisions of Article 31 of the Labour Code 2019: “Within 15 days from the expiry of the suspension period of the employment contract, the employee shall be present at the workplace and the employer shall reinstate the employee under the employment contract if it is still unexpired unless otherwise agreed by both parties or prescribed by law.”

The above is information on the performance of labour contracts in the case of temporary detention of employees. In case you need detailed information or other information in the related labour field, readers can contact Lac Duy & Associates for timely advice and support.

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