Welcome to our Labor Law Review No.02.2020, which provides you with (i) the insight “What employers should do if employees absent from work for several days without permission and (ii) updates on labor law from May 01, 2020, to June 14, 2020.Any questions, please feel free to contact us at info@letranlaw.com

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EMPLOYEES ABSENT FROM
WORK FOR SEVERAL DAYS
WITHOUT PERMISSION: WHAT
SHOULD EMPLOYERS DO?
UPDATES ON LABOR LAW FROM MAY 01, 2020
TO JUNE 14, 2020
02.2020
[Page 7]
[Page 2]
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Dismissal: Should or should not?
Article 126.3 of the 2012 Labor Code stipulates circumstances in which an employer
can dismiss an employee. One of them is: “The employee is absent from work for
05 working days in total within a month or 20 working days in total within a year
without permission and plausible reasons.” Accordingly, there are three conditions
that the employer must take into account prior to dismissal:
(1) Period of absence: 05 working days in total within 30 days, or 20 working days
in total within 356 days, from the first day of unauthorized absence;
(2) Without permission from the employer;
(3) Without plausible reasons. “Plausible reasons” consist of:
• Natural disasters, fire;
• Illness of the employee or his/her parents, adoptive parents, parents in-
law, spouse, children, legally adopted children with certificates issued by
a diagnosis or treatment establishment which is established and operated
according to law;
• Other reasons approved by the employer and specified in its internal labor
regulations.
However, in actual practice it is difficult to have a dismissal based on employee
absences which will be considered legitimate by a court of law. The reason is that it
is especially problematic to prove that the reasons for the employee’s absence are
implausible and that the dismissal is reasonable and conducted in accordance with
legal procedures. This will be illustrated by the following case:
In a dispute settled by the People’s Court of Ba Ria - Vung Tau Province and stated in
Judgment No.02/2018/LD-PT1
dated May 08, 2018, the Court revoked the dismissal
decision of the employer because: (1) the employee’s violation was not serious
enough to be subjected to a dismissal, and the employer was also at fault due to
its incoherent procedure in approving leave applications and (2) the employer’s
disciplinary process against the employee was not in compliance with the law.
Specifically, the People’s Court of Ba Ria – Vung Tau Province ruled that:
1 See Judgment No.02/2018/LD-PT HERE (in Vietnamese).
2
INSIGHT
EMPLOYEES ABSENT FROM WORK FOR SEVERAL DAYS WITHOUT
PERMISSION: WHAT SHOULD EMPLOYERS DO?
EMPLOYEESABSENTFROMWORKFORSEVERALDAYSWITHOUTPERMISSION:
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“[...]attheappellatetrial,Mr.N,whorepresentedCompanyH,admittedCompany
H’s regulations did not stipulate that its HR Department had to create a hand-
over record when receiving a leave application from an employee. Therefore,
Company H had no objective grounds to release its HR Department from their
responsibilities as well as to conclude that it was completely Mrs. H’s fault that
the HR Department did not receive her leave application. This indicates that the
employer’s (Company H’s) procedure of approving the employee’s (Mrs. H’s) leave
application was not coherent, which resulted in a lack of verifiable compliance in
the employer’s (Company H’s) disciplinary process against the employee (Mrs. H)
based on the ground that ‘the employee was absent from work for 05 working
days in total within 30 days from the first day of unauthorized absence... without
permission and plausible reasons’ stipulated in Article 26.9 of the Company H’s
Internal Labor Regulations.”
[...] although Mrs. H was negligent since she took leave before obtaining a written
approval from Company H, Company H cannot deny the fact that to continue
the business activities of the International Marketing Department while Mrs. H
was on her leave, Mrs. H was required to inform her immediate supervisor of
her leave plan 14 days in advance so as to plan the business schedule for the
International Marketing Department. Therefore, the extent of Mrs. H’s fault was
solely negligence in complying with the leave application procedure. She did not
intentionally or willfully disrespect Company H’s internal rules, regulations or
policies. As a result, Mrs. H’s violation was not serious enough to merit the most
severe punishment which is dismissal.
During the Company’s disciplinary meeting against Mrs. H the fact that Mrs.
L made a “self-statement” confirming that she helped Mrs. H fulfil the leave
procedure was not taken into account by Company H. In addition, Company H
continued with the discipline of Mrs. H without the minutes of the disciplinary
meeting with the participation of the collective employees of the International
MarketingDepartment.Therefore,basedonallobjectiveandsubjectiveelements,
and because the extent of Mrs. H’s violation was not reasonably assessed by
Company H, that Company H disciplined Mrs. H with the most severe measure of
dismissal is not satisfactory, objective, comprehensive or adequate.”
Nevertheless, a dismissal is still possible provided that the employer has coherent
internal labor regulations and fully satisfies all requirements of the disciplinary
process prescribed by law. An illustration of such is a dispute settled by the People’s
Court of Binh Duong Province and confirmed in Judgment No.30/2018/LD-PT2
dated
November 27, 2018. Even though the employee provided certificates of taking
leave claiming to be entitled to a social insurance allowance with the reasons of
“digestive disorders, sore throat or bronchitis, (or) looking after ill children...”, the
Court nevertheless ruled that the employer’s dismissal was legal as the employer
successfully proved that it had strictly complied with the disciplinary process as
prescribed by law. In this case the employer had clearly enumerated the leave
application process and grounds for dismissal in the internal labor regulations, a
written record was made that the employee had taken leave without notice and
permission, and disciplinary meeting invitations were sent 03 times via registered
2 See Judgment No.30/2018/LD-PT HERE (in Vietnamese).
3
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mail having evidence of receipt at the employee’s address. In addition, the
disciplinary meeting had the requisite objective participation of the representative
of the collective employees and the Trade Union at the higher level, the person
conducting the labor disciplinary meeting and the person signing the dismissal
decision had full authority, and the employer couriered the dismissal decision to
the employee in compliance with the law.
Therefore, it is possible for employers to dismiss employees in a legal manner.
However,itposesarisktoemployerssincethedismissaldecisioncouldbeconsidered
illegal if there is a minor mistake during the disciplinary process. Article 33.3 of
Decree No.05/2015/ND-CP stipulates that the consequences of an illegal dismissal
are the same as those of an illegal unilateral termination of a labor contract by an
employer. Should an illegal termination occur, the employer must:
 Reinstate the employee;
 Pay salaries, the premiums of social insurance, health insurance for the days
the employee was not allowed to work;
 Compensate at least 02 months’ salary due to illegal dismissal;
 Pay a severance allowance to the employee if the employee does not wish to
continue working for the employer;
 Additionally, pay a compensation in an amount agreed to by both parties, but
at least the equivalent of 02 months’ salary should the employer not wish to
reinstate the employee and the employee agrees to forgo working in the same
position.
Employers unilaterally terminating a labor contract: can or cannot?
The provision that “the employee is absent from work for 05 working days in
total within a month or 20 working days in total within a year without permission
and plausible reasons” is not one of direct grounds that allows an employer to
unilaterally terminate a labor contract with an employee. If an employer wishes to
unilaterally terminate a labor contract, the employer should consider more secure
grounds for termination such as “the employee regularly fails to perform his/her
job stated in the labor contract” stipulated in Article 38.1.(a) of the 2012 Labor
Code. However, in order to apply such provision, the employer must specifically
stipulate the criteria for assessment of work completion in its internal regulations.
Such assessment regulations shall be issued by the employer after consulting with
the representative organization of the collective employees at the grassroots level.
See our further analysis on this topic HERE.
The 2019 Labor Code (which will come into effect on January 01, 2021) entitles an
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employer to unilaterally terminate a labor contract with an employee who “is absent
from work without permission and plausible reasons for 05 consecutive working
days or more”. However, the period of the employee’s unauthorized absence must
be “consecutive”, which is different from a dismissal case in which the days of
unauthorized absence are accumulated within a month or a year. At present, there
is no regulation specifically guiding the implementation of the 2019 Labor Code
regarding this issue.
Alternatives?
An employer may treat an employee’s unauthorized absence as his/her act of
unilateral termination of his/her labor contract. Accordingly, the employer should:
(1) Create a written record of the fact that the employee has not been present at
work (the writing should contain the signatures of at least two witnesses);
(2) Send a written announcement via registered mail (with advice of receipt) to the
employee’s address to notify the employee of his/her unauthorized absence
and request him/her to return to work;
Note:
• The written announcement must not include any contents that state, or
could be interpreted as stating, that the employer will unilaterally terminate
the labor contract if the employee does not return to work;
• In case the written announcemen could not be delivered to the employee
(for example, due to a false address, the employee’s refusal to receive the
announcement, or other reasons), the employer needs to request that the
post office issue a written confirmation of the reason why the delivery has
failed;
• If there is a successful delivery, the employer needs to request that the post
office provide an advice of receipt which has the recipient’s full name and
signature; and
• The employer should retain the following records: (1) a copy of the written
announcement delivered to the employee, (2) all of bills of consignment
having the full signature of the sender and courier (and the post office’s
stamp if any), (3) all documents showing advice of receipt or written
confirmation of the reason why the delivery has failed, which are provided
by the post office, and (4) the original written announcement (including the
envelope) returned by the post office.
(3) Withhold the salary of the employee during the period the employee was
absent from work;
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(4) Withhold the premiums of social insurance for the employee during the
months in which the employee does not work for 14 working days or more;
(5) If the written announcement is sent and received, but the employee still does
not return to work, issue a written confirmation of the termination of the labor
contract due to the employee’s illegal unilateral termination and settle the
employee’s relevant benefits as prescribed by law;
Note:
• This written confirmation is only allowed to be sent after the expiry of the
period prescribed by law, during which the employee has the opportunity
to inform the employer in advance of his/her unilateral termination of the
labor contract (45 days for indefinite-term labor contracts or 30 days for
definite-term labor contracts); and
• The contents of the written confirmation shall state that the employee’s
illegal unilateral termination is the reason for the termination of the labor
contract. There must be no contents which state, or could be interpreted as
stating, that the employer is the one who unilaterally terminated the labor
contract.
(6) The employer’s managers or persons in charge should not have any personal
communication with the employee via phone, message, email, or other online
communication channels. In case the employee personally contacts such
managers or persons in charge, those people should not reply to the employee
and the employer should consult legal professionals who will formulate
appropriate solutions which will not pose risks to the employer.
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UPDATES ON LABOR LAW FROM MAY 01, 2020 TO JUNE 14, 2020
1 – IMPLEMENTATION OF THE LAW
No. Issuing
authority
Type of
document
Serial number Date of
issuance
Effective date/
Implementation
date
Main contents
1 Inspectorate
of Ministry
of Labor –
Invalids and
Social Affairs
(“MOLISA”)
Inspection
report
51/KL-TTr
52/KL-TTr
53/KL-TTr
54/KL-TTr
58/KL-TTr
59/KL-TTr
60/KL-TTr
62/KL-TTr
April 09, 2020 April 09, 2020 Inspection report
on the observance
of legislations
on training in
occupational safety
and health at some
units.
Click here to see the
contents.
2 – LEGISLATION
No. Issuing
authority
Type of
document
Serial number Date of
issuance
Effective date/
Implementation
date
Main contents
1 Government Decree 61/2020/ND-CP May 29, 2020 July 15, 2020 Amending and
supplementing
several articles of
Decree No.28/2015/
ND-CP dated March
12, 2015 issued by
the Government
stipulating in detail
implementation of
several articles of
the Employment
Law regarding
unemployment
insurance.
Click here to see the
contents.
2 Government Decree 58/2020/ND-CP May 27, 2020 July 15, 2020 Stipulating rates
of compulsory
social insurance
contributions to
the Insurance Fund
of occupational
accident and
disease.
Click here to see the
contents.
7

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3 – DIRECTIVES
No. Issuing
authority
Type of
document
Serial number Date of
issuance
Effective date/
Implementing
date
Main contents
1 Department of
Labor - Invalids
and Social
Affairs of Ho
Chi Minh City
Official
Letter
13413/
SLDTBXH-
VLATLD
May 29, 2020 May 29, 2020 Supporting
foreigners who are
investors, technical
experts, skilled
workers, enterprise
managers in entering
Ho Chi Minh City to
work.
Click here to see the
contents.
2 Government Resolution 79/NQ-CP May 25, 2020 May 25, 2020 List of countries
whose citizens are
granted Vietnam
electronic visas;
list of international
border gates that
allow foreigners to
enter and exit with
Vietnam electronic
visas.
Click here to see the
contents.
3 Vietnam Social
Insurance
Authority
Official
Letter
1391/BHXH-BT May 06, 2020 May 06, 2020 Implementation of
some contents of
Resolution No.42/
NQ-CP and Decision
No.15/2020/QD-TTg.
Click here to see the
contents.
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4 MOLISA Official
Letter
1511/LDTBXH-
BHXH
May 04, 2020 May 04, 2020 Instructions on
temporary cessation
of contributions to
the fund of pension
and death benefit.
Click here to see the
contents.
5 Ho Chi Minh
City Social
Insurance
Agency
Official
Letter
906/BHXH-QLT April 28, 2020 April 28, 2020 Procedures for
confirming the
list of employees
temporarily
suspending labor
contracts or taking
unpaid leaves
because enterprises
face difficulties
caused by the
Covid-19 pandemic.
Click here to see the
contents.
9

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4 – DRAFT LEGISLATION
No. Drafting
authority
Type of
document
Version Starting date
of collecting
comments
Expiry date
of collecting
comments
Main contents
1 MOLISA Circular 1 June 11, 2020 August 11, 2020 Stipulating the
List of potentially
unsafe products and
goods subject to the
State management
responsibility of the
Ministry of Labor –
Invalids and Social
Affairs.
Click here to see the
contents.
2 MOLISA Decree 1 June 03, 2020 August 03, 2020 Stipulating in detail
the implementation
of several articles
of the Labor Code
regarding labor
dispute resolution.
Click here to see the
contents.
3 MOLISA Decree 1 May 27, 2020 July 27, 2020 Stipulating in detail
the implementation
of several articles
of the Labor Code
regarding labor
management,
labor contracts,
salaries, labor
discipline, material
responsibility.
Click here to see the
contents.
10

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4 MOLISA Decree 1 May 27, 2020 July 27, 2020 Regulations on
employees who are
domestics under
Article 161.2 of the
Labor Code.
Click here to see the
contents.
5 MOLISA Decree 1 May 13, 2020 July 13, 2020 Regulations on
holding dialogue and
promoting grassroots
democracy at the
workplace.
Click here to see the
contents.
6 MOLISA Decree 1 May 04, 2020 July 04, 2020 Regulations on
retirement age
and conditions
for pension
entitlements.
Click here to see the
contents.
7 MOLISA Decree 1 May 04, 2020 July 04, 2020 Stipulating the
list of workplaces
that strike is not
allowed and labor
dispute resolution
in workplaces that
strike is not allowed.
Click here to see the
contents.
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8 MOLISA Decree 1 May 04, 2020 July 04, 2020 Stipulating in detail
and guiding the
implementation
of the Labor Code
regarding depositing
money for,
conditions, process
and procedures for
granting, re-granting,
extension and
revocation of License
of labor subleasing
service and the list of
jobs that are allowed
to sublease labors.
Click here to see the
contents.
9 MOLISA Decree 1 April 29, 2020 June 29, 2020 Regulations on
foreign employees
working in Vietnam.
Click here to see the
contents.
10 MOLISA Decree 1 April 27, 2020 June 27, 2020 Regulations on
recruitment and
management of
Vietnamese workers
working for foreign
organizations
or individuals in
Vietnam.
Click here to see the
contents.
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The contents of this document do not constitute legal
advice and do not necessarily reflect the opinions of our
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provides general information, which may or may not be
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contents are not intended to be used as a substitute for
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11 MOLISA Decree 1 April 06, 2020 June 06, 2020 Stipulating in detail
several articles of
the Labor Code
regarding working
time and break time.
Click here to see the
contents.
12 MOLISA Circular 1 April 06, 2020 June 06, 2020 Statistics on and
declaration of
occupational
accidents and
technical incidents
severely affecting
occupational safety
and health.
Click here to see the
contents.
13 Ministry of
Health
Circular 1 May 06, 2020 July 04, 2020 Instructions on the
implementation of
health insurance.
Click here to see the
contents.
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