Points to keep in mind when applying punishment to workers who abandon work without justifiable reason and without permission
2023/01/20
Introduction
Many employers in Vietnam face situations where workers abandon their jobs without notice or permission from their employers in the course of production and business activities. If a worker abandons their job without justifiable reason, it not only leads to a temporary labor shortage, but also has an indirect impact on the employer’s normal business activities. In this article, we will explain the penalties that employers can apply to workers who abandon their jobs without justifiable reasons and the points to keep in mind.
1. What does it mean to “abandon a job without a valid reason and without permission”?
The current 2019 Labor Law (hereinafter referred to as the “Labor Law”) does not include any definition of “abandoning work without a valid reason and without permission.” However, “abandoning work without justifiable reason” is considered to be absenteeism that has the following elements.
(i) Failure to notify the employer.
(ii)Failure to comply with internal regulations regarding the leave application process, even though the employer has been notified, or was not authorized by the employer.
According to Article 125, Paragraph 4 of the Labor Law, cases that are considered “justifiable reasons” include: natural disasters or fires, cases where the person or a family member is diagnosed with an illness by an authorized medical institution, Other cases stipulated in the employment regulations.
Determining whether a worker has “abandoned work without a justifiable reason or without permission” is extremely important, as this will be the basis and reason for the employer to apply the following penalties against the worker.
2. Punishment against workers who “abandoned work without a valid reason and without permission”
The Labor Law stipulates the following penalties that employers can apply to workers who “abandoned their jobs without justifiable reason”.
2.1. Termination of a labor contract due to the employer unilaterally canceling the labor contract with the worker
According to Article 36, Paragraph 1, Item e of the Labor Law, if a worker abandons work for five consecutive days or more without permission without justifiable reason, the employer has the right to unilaterally cancel the labor contract.
Additionally, employers need to keep the following points in mind.
– Before making a decision to cancel a labor contract, sufficient evidence must be gathered to prove the grounds for cancellation, and such evidence must be retained even after the decision is made.
– The number of days for which an employee is absent from work without a valid reason must be consecutive and must not be spaced apart.
– Even if a labor contract is canceled unilaterally, the employer is not required to pay retirement benefits to the worker.
Regarding the procedure for unilateral termination of the labor contract, the employer is not required to notify the worker in advance. The employer must notify the employee in writing of the termination.
2.2. Termination of a labor contract due to the employer discharging the employee based on labor regulations
According to the provisions of the Labor Law, if an employee abandons work without permission for a total of 5 days in 30 days or 20 days in 365 days from the date of the act of abandoning work without justifiable reason, the employer shall The company has the right to dismiss employees based on labor discipline. Additionally, employers need to keep the following points in mind.
– In considering whether an employer should unilaterally terminate a labor contract against a worker or dismiss the worker based on labor discipline, one of the criteria to be adopted is whether the number of days of unauthorized absence is “consecutive” or “total.
– When discharging a worker based on labor regulations, it is necessary to prove the worker’s violation. In other words, it is necessary to prove the fact that the worker abandoned work without a valid reason and the number of days
– Employers cannot dismiss female workers who are pregnant, on maternity leave, or raising a child under 12 months old based on labor regulations, etc., and the principles and procedures for sanctions based on labor regulations. and procedures must be strictly adhered to. When carrying out dismissal measures based on labor regulations, the following procedures must be followed. (i) Recording and collecting evidence of workers’ violations, (ii) Holding a sanctioning meeting, (iii) Approving the minutes of the sanctioning meeting, (iv) Determining the content of sanction based on labor discipline.
– Dispositions based on labor discipline must be carried out within the statute of limitations based on the provisions of laws and regulations. The statute of limitations for sanctions based on labor regulations is six months from the date of the violation. Even if an extension of the statute of limitations is granted, it shall not exceed 60 days from the expiry of the six-month period. Therefore, if an employer intends to subject a worker who has abandoned his job to dismissal based on labor regulations, he must carry out the dismissal procedure within this statute of limitations. This is because if the above-mentioned statute of limitations expires, the effect of the labor discipline disposition will cease to exist.
– Employers are not required to provide severance benefits to workers who are dismissed in this case.
2.3. Consideration of penalties applicable to workers who “abandoned their jobs without justifiable reason”
The two cases mentioned above (2.1. and 2.2.) have in common that, as a result, the employer can unilaterally terminate the labor relationship with the employee. However, the method described in 2.1. is considered to be simple and hassle-free. On the other hand, the method described in 2.2. is a punishment based on labor regulations that aims to give warnings and punishments to workers who violate internal regulations, so the procedure is complicated and time-consuming, and it costs a lot of labor. In this regard, we recommend that employers consider applying appropriate punishment to workers who have “abandoned their jobs without justifiable reasons” based on the details of the specific case.
Furthermore, if the employer can prove that the worker “abandoned work without permission” was due to the employee’s subjective intention to terminate the labor contract and retire, the employer must comply with the Labor Law. Based on Article 34, Paragraph 9, the disposition that the worker has unilaterally canceled the labor contract can be applied. This sanction differs from the two above-mentioned sanctions (2.1. and 2.2.) in that it requires the worker to bear subsequent legal liability as follows.
(i) Not eligible for retirement benefits.
(ⅱ)The employer shall be compensated an amount equal to one-half of the monthly wage according to the labor contract, plus an amount corresponding to the number of days of failure to give prior notice, according to the labor contract.
(iii) training costs must be reimbursed to the employer (if applicable).
However, if the employer cannot prove that it was the worker’s subjective will, the only options available are the two options listed above (2.1. and 2.2.).
3. Other points to keep in mind
In reality, it is extremely difficult to determine the reason why a worker “abandoned his job without a justifiable reason.” This is because many employers proactively contact workers to determine the reason, but often do not receive a response. Therefore, in order to determine the reason, employers are encouraged to proactively contact workers through various forms such as phone calls, emails, and letters. In particular, a written notice should be sent to the worker’s address. Additionally, in order to shorten the time required to identify the reason and to apply penalties appropriately, it is recommended that a deadline be set for a response when making a notification.
Conclusion
Overall, the legal framework for sanctions that employers can apply to workers who abandon their jobs without justifiable reasons is fairly well-developed, so workers can Provisions of existing laws and regulations may be applied. On the other hand, if the company does not have well-developed internal regulations regarding procedures for applying for leave and resignation, and if the environment is such that workers are likely to abandon their jobs without just cause and without permission, there is a possibility that workers will abandon their jobs frequently. In order to prevent such situations from occurring, it is necessary to establish internal rules and regulations regarding leave and retirement applications, and to make them known to workers.
*This article was translated by Yarakuzen.
