▷ Following the entry into force of the Labour Code of 2012 (Law No. 10/2012/QH13) and the Law on Trade Unions of 2012 (Law No. 12/2012/QH13), in 2013, the Decree No. 95/2013/ND-CP dated 22 August 2013 on penalties for administrative violations against regulations on labour, social insurance and overseas manpower supply by contract was issued.
▷ Decree No. 95/2013/ND-CP only regulates administrative sanctions (fines) for violations of the labour law. It does not modify the substantive or procedural rules on termination of employment and therefore has no impact on the themes covered by EPLex.

▶ Labour Code (LC)
→ Section 1 LC provides that this Code regulates the labour standards; the rights, obligations and responsibilities of employees, employers, employees’ representative organisations and employers’ representative organisations in labour relations and other relations directly related to labour relations.

▶ Labour Code (LC)
▷ The Labour Code 2012 does not contain a general exclusion of civil servants from its scope of application (unlike the previous Labour Code).
→ Section 2 LC lists the subjects of application without excluding civil servants or public employees. However, civil servants (công chức) and public employees (viên chức) are governed by separate specialised laws (Law on Cadres and Civil Servants and Law on Public Employees) and do not work under a labour contract as defined in the Labour Code. Therefore, the dismissal provisions of the Labour Code do not apply to them.
▷ Explicit exclusions are provided for:
→ Section 179(2) LC on domestic employees indicates that: This Code does not apply to employees who do housework in the form of piecework.
→ Section 185(2) LC on employees performing home-based work states that: This Code does not apply to employees performing home-based work in the form of processing.

Changes brought by the new Labour Code (in force since May, 1st 2013, will be reflected in the EPLex profile for 2013.

▶ Labour Code (LC)
The LC classifies employment contracts into three types: indefinite-term, definite-term, and seasonal.
▶ Labour Code
→ Section 22 provides that:
A labour contract must be entered into in one of the following types:
(a) Indefinite-term labour contract; An indefinite-term labour contract is a contract in which the two parties do not determine the duration or the time of termination of the contract.
(b) Definite-term labour contract; A definite-term labour contract is a contract in which the two parties determine the duration and the time of termination of the contract within a period of between 12 months and 36 months.
(c) A seasonal or work-specific labour contract that has a duration of under 12 months.

▶ Labour Code (LC)
→ Section 22(3) provides that: It is prohibited to enter into a seasonal or work-specific labour contract of under 12 months for a regular job which has a duration of more than 12 months, except the case of temporary replacement of an employee who has taken leave for military duty, pregnancy and maternity, sickness, labour accident or other temporary leaves.

▶ Labour Code (LC)
→ Section 22(2) provides that: In case the two parties enter into a new labour contract with a definite term, only 1 additional definite-term labour contract may be signed; after that, if the employee continues working, an indefinite-term contract must be entered into.

▶ Labour Code (LC)
▷ Definite-term employment contracts can be signed for a maximum of 36 months (3 years), and can only be extended once. Therefore, if a definite-term employment contract is signed for the legal maximum period of time and extended once, it can last for 6 years in total.
→ Under section 22(1)(b) of the LC, a definite-term labour contract is a contract in which the two parties determine the duration and the time of termination of the contract within a period of between 12 months and 36 months. In case the two parties enter into a new labour contract with a definite term, only 1 additional definite-term labour contract may be signed.

▶ Labour Code (LC)
→ Section 27 LC provides that: The probation period must be based on the nature and complexity of the job, but probation is applied only once for each job and assure the following conditions:
1. It does not exceed 60 days for posts which require professional and technical qualification of collegial or higher level.
2. It does not exceed 30 days for posts which require professional and technical qualifications of intermediate vocational level, professional secondary level, or for technical workers and skilled employees.
3. It does not exceed 6 working days for other types of jobs.

▶ Labour Code
→ The Labour Code 2012 does not contain a general exclusion of public employees. However, civil servants and public employees are governed by separate legislation and are therefore not covered by the dismissal provisions of the Labour Code.
▷ In addition, the following specific categories of workers are explicitly excluded from the application of the LC:
→ Section 179(2) LC on domestic employees indicates that: This Code does not apply to employees who do housework in the form of piecework.
→ Section 185(2) LC on employees performing home-based work states that: This Code does not apply to employees performing home-based work in the form of processing.

▶ Labour Code (LC)
→ The LC 2012 does not contain a provision equivalent to the former section 43 of the previous Labour Code that required the employer to state the reasons for termination in the worker’s labour book.

▶ Labour Code (LC)
▷ Leave, sickness
→ Section 39 provides that an employer is prohibited from unilaterally terminating a labour contract in the following cases:
1. The employee is sick or has a work accident or occupational disease and is being treated or nursed under the decision of a competent health establishment, except in the case specified at Point b, Clause 1, section 38 of this Code.
2. The employee is on annual leave, personal leave or any other type of leave permitted by the employer.
3. The employee is a female referred to in Clause 3, section 155 of this Code.
4. The employee is on maternity leave in accordance with the Law on Social Insurance.
▷ Maternity and pregnancy
→ Section 155(3) provides that: An employer may neither dismiss a female employee nor unilaterally terminate the labour contract with a female employee for the reason of her marriage, pregnancy, maternity leave, or that she is nursing a child under 12 months of age, except the case in which the employer is an individual who dies, or is declared by a court to have lost his/her civil act capacity, or to be missing or dead, or the employer is an institution that ceases operation.
▷ Non-discrimination
→ Section 8 prohibits discriminating on the basis of gender, race, social class, marital status, belief, religion, HIV status, disabilities or for the reason of establishing, joining a trade union and participating in trade union activities.
▷ Trade union activities
→ Section 192(7) LC provides protection to labour union representatives, indicating that: When an employer unilaterally terminates the labour contract of, transfers to another job or sacks an employee who is a part-time trade union representative, he/she must obtain the written agreement of the executive committee of the grassroots-level trade union or the executive committee of the immediate higher-level trade union.
If failing to reach such an agreement, the two parties shall report it to a competent agency or organization. Only after 30 days after notifying the case to the local state management agency of labour, may the employer make a decision, and he/she shall take responsibility for his/her decision.
If disagreeing with the employer’s decision, the executive committee of the grassroots-level trade union and the employee concerned may request labour dispute settlement in accordance with the procedures and order provided by law.
▶ Law on Trade Union (LTU) 2012
→ Section 25 TUA states that:
1. The case labour contract or working contract has expired, but the labourer is a part-time Trade Union member cadre, and during his tenure, he shall be granted a prolonged labour contract or working contract till the end of his tenure.
2. Unit employing labourers shall not unilaterally terminate the labour contract or working contract, dismiss, enforce to quit or transfer jobs with respect to part-time Trade Union cadre if the primary trade union committee or trade union committee of a directly higher level had no agreement in writing. If the case does not reach an agreement, the two parties must report to the competent agency or organization. Within 30 working days, from the date of reporting to the competent agency or organization, the unit employing labourers shall be entitled to decide and must be responsible for such a decision.
3. Case employee being part time Trade Union cadre is terminated labour contract or working contract, enforce to quit or unlawful dismissal, Trade Union shall have responsibility to require competent State agencies to interfere; if being authorized, Trade Union may represent to sue at Court to protect legal rights and interest of Trade Union cadre; and support to find new job and pay allowances in period of interrupted work as prescribed by Vietnam General Confederation of Labour.

▶ Labour Code (LC)
▷ Restriction on imposing labour discipline on workers on leave or disease, including mental disorder
→ Section 123(4) and (5) LC provide that:
4. Labour discipline may not be imposed for violations committed by an employee who is currently:
a) Taking sickness or convalescence leave or leave with the employer’s consent;
b) Kept in custody or temporary detention;
c) Waiting for results of verification and conclusion of a competent agency for acts of violation specified in Clause 1, section 126 of this Code;
d) A female employee and pregnant or on maternity leave; rearing a child under 12 months of age.
5. No labour discipline will be imposed on an employee who violates the internal working regulations while suffering a mental disorder or another disease which deprives him/her of the capacity to perceive or control his/her acts.
▷ Marriage, pregnancy and maternity
→ Section 155(3) and (4) protects female employees against dismissal or unilateral termination of the labour contract due to marriage, pregnancy, maternity leave, or nursing a child under 12 months of age.
▷ Union representatives
→ Section 192(7) provides that when an employer unilaterally terminates the labour contract of, transfers to another job or sacks an employee who is a part-time trade union representative, he/she must obtain the written agreement of the executive committee of the grassroots-level trade union or the executive committee of the immediate higher-level trade union.
▶ Law on Trade Union (LTU)
→ Section 25(2) states that: A unit employing labourers shall not unilaterally terminate the labour contract or working contract, dismiss, enforce the quit or transfer jobs with respect to part-time Trade Union cadre if the primary trade union committee or trade union committee of a directly higher level had no agreement in writing. If the case does not reach an agreement, the two parties must report to the competent agency or organization.

▶ Labour Code (LC)
→ Section 38(2) LC provides that when unilaterally terminating a labour contract, the employer shall notify the employee in advance. The Code does not specify that the notification must be in writing.

▶ Labour Code (LC)
→ Section 38(2) provides that when unilaterally terminating a labour contract, the employer shall notify the employee in advance:
a) At least 45 days, for indefinite-term labour contracts;
b) At least 30 days, for definite-term labour contracts;
c) At least 3 working days, for seasonal or work-specific labour contracts of under 12 months.

▶ Labour Code (LC)
▷ References made under section 44 to the dismissal of more than one employee:
→ Sub-section (1) refers to a change in the structure or technology that affects the employment of many employees.
→ Sub-section (2) refers to the case where more than one employee faces the risk of unemployment for economic reasons.
→ Sub-section (3) regulates the dismissal of more than one employee in accordance with this Article.

▶ Labour Code (LC)
→ Section 44(3) LC provides that: The dismissal of more than one employee in accordance with this Article may be implemented only after discussion with the representative organization of the grassroots-level employees’ collective and notification 30 days in advance to the provincial-level state management agency of labour.
→ Section 46(2) LC provides that the labour utilization plan must be elaborated with the participation of the representative organization of the grassroots-level employees’ collective.

▶ Labour Code (LC)
→ Section 44(3) LC provides that the dismissal of more than one employee may be implemented only after [...] notification 30 days in advance to the provincial-level state management agency of labour.

▶ Labour Code (LC)
→ Section 44(3) LC requires discussion with the representative organization of the grassroots-level employees’ collective before the dismissal of more than one employee.
→ Section 46(2) LC requires that the labour utilization plan be elaborated with the participation of the representative organization of the grassroots-level employees’ collective.

▶ Labour Code (LC)
→ Section 44(3) LC requires only prior notification of 30 days to the provincial-level state management agency of labour. There is no requirement for approval.

▶ Labour Code (LC)
→ Section 44(3) LC requires discussion with the representative organization of the grassroots-level employees’ collective, but does not require their approval or consent.
→ Section 46(2) LC requires participation of the representative organization in the elaboration of the labour utilization plan, but does not require approval.

▶ Labour Code (LC)
→ The Labour Code 2012 does not contain any provision establishing priority rules for selecting employees to be dismissed in cases of structural or technological changes or economic reasons (unlike the former section 17(2) of the previous Labour Code).

▶ Labour Code (LC)
→ Section 44(1) LC provides that: In case new jobs are created, priority must be given to re-training these employees for continued employment.

▶ Labour Code (LC)
→ Section 44(1) LC provides that: In case there is a change in the structure or technology that affects the employment of many employees, the employer shall elaborate and implement a labour utilization plan in accordance with section 46 of this Code. In case new jobs are created, priority must be given to re-training these employees for continued employment.
→ Section 46(1) LC provides that a labour utilization plan must have the following principal contents:
a) The lists and numbers of employees to be further employed and employees to be re-trained for continued employment;
b) The list and number of employees to be retired;
c) The lists and numbers of employees to be assigned part-time jobs and those to terminate their labour contracts;
d) Measures and financial sources for implementing the plan.
2. The labour utilization plan must be elaborated with the participation of the representative organization of the grassroots-level employees’ collective.

▶ Labour Code (LC)
→ Section 48 LC provides that:
(1) In case a labour contract terminates in accordance with Clause 1, 2, 3, 5, 6, 7, 9 or 10, section 36 of this Code, the employer shall pay a severance allowance to the employee who has worked regularly for a full 12 months or longer at the rate of half of a month’s wage for each working year.
(2) The working period used for the calculation of severance allowance is the total period during which the employee actually works for the employer, minus the period during which the employee benefits from unemployment insurance in accordance with the Law on Social Insurance, and the working period for which the employee has received severance allowance from the employer.
(3) The wage used for the calculation of severance allowance is the average wage in accordance with the labour contract during 6 months preceding the time the employee loses his/her work.

▶ Labour Code (LC)
→ Section 49 LC provides that:
(1) An employer shall pay a job-loss allowance to an employee who loses his/her job under section 44 or 45 of this Code and has worked regularly for the employer for 12 months or longer. The job-loss allowance is equal to 1 month’s wage for each working year, but must not be lower than 2 months’ wage.
(2) The working period used for the calculation of job-loss allowance is the total time during which the employee actually works for the employer, minus the time during which the employee benefits from unemployment insurance in accordance with the Law of Social Insurance, and the working period for which the employer has paid a severance allowance to the employee.
(3) The wage used for the calculation of job-loss allowance is the average wage in accordance with the labour contract during 6 months preceding the time the employee loses his/her job.