- Legal situation
Mr. Nguyen Van H signed a probationary contract with X Company Limited from September 30, 2020 to November 30, 2020. After the end of the probation period, Company X did not notify the probationary results and did not sign a labor contract with Mr. H. Mr. H continued to work at the Company until the end of December 4, 2020, when he was notified of his leave. work because the company will be streamlined. In this case, if Mr. H files a lawsuit to request the Company to compensate for the illegal termination, is it possible? What is the time to be compensated up to the date of lawsuit:
- comments on the case
Through studying the case file and based on the statements of Mr. Nguyen Van H, it can be seen that:
Firstly, Determining the labor relationship between Mr. Nguyen Ba Hai and XI COMPANY LIMITED
On September 30, 2020, Company X signed a probationary contract with Mr. Nguyen Van H with a probationary period of 2 months from September 30, 2020 to November 30, 2020.
- Pursuant to the provisions of Article 7 of Decree 05/2015/ND-CP of the Government detailing and guiding the implementation of a number of contents of the Labor Code, “Within 03 days before the termination At the end of the probationary period for an employee who does the job with a probationary period specified in Clauses 1 and 2, Article 27 of the Labor Code, the employer must notify the employee of the results of his/her work. labor has been tried; if the probationary job is satisfactory, at the end of the probationary period, the employer must immediately conclude a labor contract with the employee.” However, within a period of 3 days (November 28, 29, 30) before the end of the probationary period, CIC Phu Quoc Company did not notify Mr. Hai of the probation results.
Thus, Company X violated the provisions of Article 7 of Decree 05/2015/ND-CP above. And Pursuant to the provisions of Article 9 of Decree 28/2020 ND-CP on sanctioning of insurance administrative violations, Company X will be administratively sanctioned 500,000 – 1,000,000 for the act of “failing to notify probation results for employees”, a fine of from 2,000,000 to 5,000,000 VND for the act of “At the end of the probationary period, the employee continues to work but the employee does not enter into a labor contract with the employee.” ” and forced to take remedial measures: forced to enter into labor contracts with employees.
- According to the spirit of case precedent No. 20/2018/AL on establishing the labor contract relationship after the probationary period expires, “When the probationary period expires, the employee continues to work while the employer is employed. If there is no other agreement between the employee and the employee”, it is considered that the two parties have established a labor contract relationship.
- Therefore, between Company X and Mr. Nguyen Van H, a labor contract relationship arose
Secondly, Regarding the legality of unilaterally terminating the labor contract of XO Company
Pursuant to Article 38 of the 2012 Labor Code, the employer’s right to unilaterally terminate the Labor Contract is as follows:
“Article 38. The right of the employer to unilaterally terminate the labor contract
- The employer has the right to unilaterally terminate the labor contract in the following cases:
- a) The employee regularly fails to complete the work according to the labor contract;
- b) An employee who suffers from an illness or an accident has received treatment for 12 consecutive months, for employees working under an indefinite term labor contract, for 06 consecutive months of treatment, for employees working under a contract. definite-term laborers and over half of the labor contract’s term for those who work under seasonal labor contracts or according to a certain job with a term of less than 12 months but their working capacity has not yet recovered.
When the worker’s health recovers, the employee is considered to continue to enter into a labor contract;
- c) Due to natural disaster, fire or other force majeure reasons as prescribed by law, the employer has sought all remedial measures but is still forced to reduce production or reduce working places;
- d) The employee is not present at the workplace after the time limit specified in Article 33 of this Code.
- When unilaterally terminating a labor contract, the employer must notify the employee in advance:
- a) At least 45 days for an indefinite term labor contract;
- b) At least 30 days for a fixed-term labor contract;
- c) At least 03 working days for the case specified at Point b, Clause 1 of this Article and for seasonal labor contracts or for a certain job with a term of less than 12 months.”
Thus, Company X unilaterally terminated the illegal labor contract with Mr. H for no good reason, and at the same time violated the notice period for Mr. H.
Third, determine the time Mr. Hai received compensation from Company X due to the Company’s illegal termination of the Contract.
Pursuant to Article 42 of the Labor Code 2012 stipulating the obligations of the Employer when unilaterally terminating the Labor Contract
“Article 42. Obligations of the employer when unilaterally terminating the labor contract illegally
- The employee must return to work under the signed labor contract and must pay salary, social insurance and health insurance in the days the employee is not allowed to work plus at least 02 months’ salary. under the employment contract.
- In case the employee does not want to continue working, in addition to the compensation specified in Clause 1 of this Article, the employer must pay the severance allowance as prescribed in Article 48 of this Code.
- In case the employer does not want to take back the employee and the employee agrees, in addition to the compensation specified in Clause 1 of this Article and the severance allowance specified in Article 48 of this Code, The two parties agree on an additional amount of compensation, which must be at least equal to 2 months’ salary under the labor contract to terminate the labor contract.
- In case the employee no longer has the position or job signed in the labor contract but the employee still wants to work, in addition to the compensation amount specified in Clause 1 of this Article, the two parties shall negotiate to amend and supplement the contract. labor co.
- In case of violation of the provisions on the notice period, the employee must compensate the employee an amount corresponding to the employee’s salary in the days without notice.
Thus, Pursuant to the above provisions, Company X must pay Mr. Nguyen Van H the following amounts:
- Wages (including salary by job or title, salary allowance and other supplements) and compensation due to the Company’s illegal unilateral termination of the contract up to the time of filing the Complaint is 16 months (16 months).
- Money for violations of the 30-day notice period according to Clause 5, Article 42 of the Labor Code 2012 (1 month).
