On July 20th, 2022, the Ministry of Labor, War Invalids and Social Affairs issued Official Letter No. 308/CV-PC announcing the conclusion of Deputy Minister Mr. Le Van Thanh on resolving questions about the Labor Code 2019 and guiding documents, which contains the following notable contents:
+ Regarding unilateral termination of the labor contract in case the employee is not present at work without acceptable excuses for at least 05 consecutive working days or more
If an employee is not present at work without acceptable excuses for at least 05 consecutive working days or more (point e, clause 1, Article 36 of the Labor Code 2019), is it considered that the employee has illegally unilateral terminated the labor contract (Article 39 Labor Code 2019) ?
=> To determine whether the employee’s behavior is unilaterally terminating the labor contract or not, the employer must prove that the employee wants to terminate the labor contract at their own will and does not want to return to work.
– When the employer proves that the employee has no need to work anymore and the employee has quit without an acceptable reason for 5 consecutive working days or more (including the period from the date of the employer being informed until the date of the labor contract termination), then this case is considered as the employee has illegally unilateral terminated the labor contract.
– In other cases, there is no basis to assert that the employee illegally unilateral terminates the labor contract. In this case, the employer may unilaterally terminate the labor contract according to the provisions of Point e, Clause 1, Article 36 of the Labor Code or apply discipline the employee according to the provisions of Clause 4, Article 125 of the Labor Code 2019.
+ Regarding the insurance regimes for probationers entering into probationary contracts
During the working period under the probationary contract, does the employer have to pay an additional amount at the same time as the salary period an amount equivalent to the employer’s payment of compulsory social insurance, health insurance, and unemployment insurance for the employee in compliance with the provisions of Clause 3, Article 168 of the Labor Code 2019?
=> The employee has to pay, because:
– Pursuant to the provisions of Clauses 1 and 5 of Article 3 and Clauses 1 and 2 of Article 24 and Article 26 of the Labor Code, the probationer is an employee (the probationary contract still contains all elements of the labor relationship, the probationer is still entitled to salary).
– According to the Law on Social Insurance, the probationer under the probationary contract is not subject to compulsory social insurance; Clause 3, Article 168 of the Labor Code applies to employees who are not subject to compulsory social insurance. Therefore, employees who are probationers subject to the application of Clause 3, Article 168 of the Labor Code are guaranteed this benefit.
– In addition, Clause 3, Article 8 of Decree No. 145/2020/ND-CP stipulates that the probationary period is counted as the time the employee has worked for the employer to calculate the severance allowance if during this time the employee has not yet been paid an amount equivalent to the level of the unemployment insurance premium paid by the employer.
