Unlawful dismissal is a serious violation that directly affects the legitimate rights and interests of employees. Through this article, NPLaw would like to provide our clients with useful legal information related to cases of unlawful dismissal.
I. The matters of unlawful dismissal
According to the Vietnam General Confederation of Labour, there were 11 labor disputes nationwide before the Lunar New Year 2024. The Inspectorate of the Ministry of Labor, War Invalids and Social Affairs discovered over 25,000 violations of labor laws in Vietnam (specific time not stated). Among them, the majority of disputes arose from unlawful dismissals.
It is evident that unlawful dismissal remains a frequent issue in current labor relations.
II. Legal regulations on unlawful dismissal
1. What is considered an unlawful dismissal?
According to Article 125 of the Labor Code 2019, an employer may only dismiss an employee in the following cases:
- Dismissal shall be applied by the employer as a disciplinary measure in the following circumstances:
1. The employee commits theft, embezzlement, gambling, deliberate injury, or uses drugs at the workplace;
2. The employee discloses business secrets or technological secrets, infringes upon the employer’s intellectual property rights, causes serious damage or threatens to cause especially serious damage to the employer’s property or interests, or commits sexual harassment at the workplace as stipulated in the internal labor regulations;
3. The employee repeats violating behaviors during the disciplinary period of deferred wage increase or demotion, while the disciplinary record has not yet been cleared in accordance with Article 126 of this Code;
4. The employee voluntarily leaves work for five cumulative days within 30 days, or 20 cumulative days within 365 days from the first day of absence without legitimate reason.
- Legitimate reasons include: natural disasters, fires, or illness of the employee or their immediate family members certified by a competent medical facility, or other reasons specified in the internal labor regulations.
Therefore, if an employer dismisses an employee outside of the cases listed above, it shall be deemed unlawful dismissal.
2. How can an employee address an unlawful dismissal?
Under the law, an employee who is unlawfully dismissed may choose one of the following options to request competent authorities for resolution:
a) Filing a Complaint
- First-level complaint: Filing directly a complaint with the employer.
If the complaint is not resolved or the resolution is unsatisfactory, proceed to the second-level complaint.
- Second-level complaint: Submitting to the Chief Inspector of the Department of Labor, War Invalids and Social Affairs where the employer is headquartered.
b) Filing a Lawsuit at Court
Pursuant to Article 188 of the Labor Code 2019 and the Civil Procedure Code 2015, an employee may directly file a lawsuit at the People’s Court of the district where the employer is headquartered for labor disputes involving disciplinary dismissal.
3. Can an employer be fined for unlawful dismissal?
According to Clause 2, Article 19 of Decree No. 12/2022/NĐ-CP:
- A fine from 5,000,000 VND to 10,000,000 VND shall be imposed on employers for: improper disciplinary measures or compensation procedures that violate legal order, processes, or statutes of limitation.
Thus, although employers have the right to dismiss employees for specific violations, they must strictly follow legal procedures. Verbal dismissals or dismissals outside legal frameworks may result in fines of 5 to 10 million VND.
III. Questions about unlawful dismissal
1. Is an employee entitled to compensation? How is the compensation calculated?
Unlawful dismissal is considered an illegal disciplinary action by the employer, directly affecting the employee’s rights and benefits. By law, any party causing damage must pay compensation.
According to Article 41 of the Labor Code 2019, the employer must:
- Pay wages, social insurance, health insurance, unemployment insurance during the days the employee is not allowed to work.
- Pay at least 02 months of additional wages according to the labor contract for the employee.
If the employee no longer wants to work at that company, in addition to the two compensation amounts above, the employee will also receive severance pay.
The above amounts are compensation for employees who have suffered loss of income and have their legal rights and interests affected.
Thus, illegally dismissed employees are compensated based on their salary according to the labor contract and the compensation value is implemented according to the above legal provisions.
2. Can an employee sue if their complaint is unresolved?
Under Clause 1, Article 188 of the Labor Code 2019 and Clause 1, Article 32 of the Civil Procedure Code 2015, an employee may file a lawsuit directly without needing to go through the mediation process for cases involving dismissal.
Complaints in case of illegal dismissal are not mandatory procedures before filing a lawsuit in case of illegal dismissal.
Thus, employees may proceed to court even if their complaint was unresolved or without filing a complaint first.
3. What are the employer’s responsibilities in cases of unlawful dismissal?
Pursuant to Article 41 of the Labor Code 2019, the employer must:
- Reinstate the employee and pay wages, insurance contributions (social, health, unemployment) for the period of work suspension; and pay an additional amount of at least two months’ salary per the labor contract.
If no suitable position and work is available, and the employee agrees to return, both parties shall negotiate to amend the contract;
If the employee does not wish to return, the employer must pay severance allowance in accordance with Article 46 of Labor Code 2019 outside amounts as stated in Article 41 of this Code;
If both parties agree not to reinstate the employee, the employer must pay additional compensation of at least two months' salary, in addition to the amounts above.
4. Can the employee file a lawsuit for unlawful dismissal?
Under Point a, Clause 1, Article 32 of the Civil Procedure Code 2015:
- Individual labor disputes related to dismissal or unilateral termination of labor contracts are not required to undergo mediation procedures before being brought to court.
Thus, employees may sue the employer for unlawful dismissal directly.
5. What compensation is the employee entitled to?
Unlawful dismissal is considered a form of unilateral contract termination by the employer. As such, under Article 41 of the Labor Code 2019, the employer must:
- Pay wages, social insurance, health insurance, unemployment insurance during the days the employee is not allowed to work.
- Pay at least 02 months of additional wages according to the labor contract for the employee.
If the employee no longer wants to work at the company, in addition to the two compensation amounts above, the employee will also receive severance pay.
6. What fines will the employer face for unlawful dismissal?
According to Point c, Clause 3, Article 19 of Decree No. 12/2022/NĐ-CP:
- A fine from 20,000,000 VND to 40,000,000 VND shall be imposed on employers who impose disciplinary dismissal based on violations not specified in internal labor rules, the labor contract, or labor laws.
Furthermore, per Clause 1, Article 6 of this Decree, these fines apply to individuals. If the violator is a legal entity (organization), the fine shall be doubled.
IV. Why you should consult a lawyer for unlawful dismissal cases
Understanding the growing need for legal assistance regarding unlawful dismissal, NPLaw, with extensive experience across various legal domains, is ready to support and advise clients on all legal matters related to unlawful termination of employment.
Please feel free to contact NPLaw for dedicated and prompt legal consultation via the details below:
