Dismissal: In Circumstances of Employee Absence

The Labor Code (Code) stipulates circumstances where an employer can dismiss an employee. The Code provides, three conditions that the employer must take into account prior to dismissal regarding employee absence:

• 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;
• Without permission from the employer;
• Without plausible reasons. “Plausible reasons” consist of:
• Natural disasters, fire;
• Illness of the employee or his/her family members 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 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 02/2018/LD-PT dated May 08, 2018, the Court revoked the dismissal decision of the employer because:

• the employee’s violation was not serious enough to be subjected to a dismissal;
• the employer was also at fault due to its incoherent procedure in approving leave applications; and
• the employer’s disciplinary process against the employee was not in compliance with the law.

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 30/2018/LD-PT 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 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, it poses a risk to employers since the dismissal decision could be considered illegal if there is a minor mistake during the disciplinary process. 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 dismissal occur, the employer must:

• Reinstate the employee;
• Pay salaries, the premiums of mandatory insurances for the days the employee was not allowed to work;
• Compensate at least 2 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 2 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 2019 Labor Code, which came into effect on January 01, 2021, entitles an employer to unilaterally terminate a labor contract with an employee who “is absent from work without permission and plausible reasons for 5 consecutive working days or more”.

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 .

The employer can also consider another ground for termination which is “the employee regularly fails to perform his/her job stated in the labor contract”. 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 if such organization exist.

Alternatives?

An employer may treat an employee’s unauthorized absence as an act of unilateral termination of their labor contract. Accordingly, the employer should:

• 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);
• Send a written announcement via registered mail (with advice of receipt) to the employee’s address to notify the employee of their unauthorized absence and request them 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 announcement 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.
• Withhold the salary of the employee during the period the employee was absent from work;
• 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;
• 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.
• 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.

If you have any questions or concerns about this insight, please contact us at info@letranlaw.com