1.
Right
to terminate labor contract of the employer:
For the case of a
foreign employee who has not come to work for months and is now back to his/her
home country, the employer is allowed to terminate his/her labor contract since
under the labor law of Vietnam, if the employee abandons his/her job at his own
will for an aggregate number of five days in a month or an aggregate number of
20 days in a year with plausible reasons (According to Article 126.3 of Labor
Code 2012), the employer shall be entitled to dismiss that employee. Actually such
employee has abandoned his job for more than 20 working days as from the
signing date of his contract so legally speaking, the employer can dismiss such
employee.
2.
Procedure
for employee dismissal:
However, in order to
dismiss an employee, the labor law of Vietnam requires the employer to prove
that the dismissal is reasonable and legal and must follow some administrative
procedures before dismissing an employee. The most impost requirement the
employer must satisfy is to inform such employee to come back to Vietnam at least
2 times to take the disciplinary meeting (if he/she does not come after 02 times
of notice, the employer can proceed the meeting without his/her presentation)
and to have the presentation of the Trade Union at the meeting. Only having
written approval from Trade Union, the employer may be able to dismiss such
employee.
3.
Work
to be done to dismiss such employee:
Firstly, the employer
must send such employee an email to ask such employee to come back to Vietnam
to take disciplinary meeting with the company and Trade Union. Such employee
has five days to present in Vietnam.
Meanwhile, on the same
day of sending such requesting email, the employer arrange with Trade Union for
a meeting and both parties shall make a meeting minute of such employee’s absence
from work and such employee shall proceed the disciplinary procedure if he/she
does not come back.
Secondly, after 05 days
from the first email, the employer warn such employee again and confirm that if
he/she does not come back, the employer shall dismiss him/her. The employer
also makes a meeting minute with Trade Union to confirm his/her absence in the
meeting.
Finally, after 02 days
from the second email, if such employee does not present at the company, the
employer shall make dismissal decision with the written approval and
certification of Trade Union.
Moreover, the labor law
of Vietnam requires to the employer send the dismissal decision and relevant
document to the Department of Labor, War Invalids and Social Affairs. In the
case, the employee has not yet applied for such employee’s work permit or not
complied with the laws of Vietnam in term of the management of foreign
employee, the employee may face with an administrative penalty or even an
inspection arisen from the dismiss of such employee.
Therefore, the employer
should strictly follow the procedures of contract termination to avoid
potential risk (if any).