ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

 

The fact that employees are absent without permission for five days leads to many difficulties for the enterprise. Therefore, Vietnam’s labor law not only protects the legitimate rights of workers,.but also provides very detailed.and strict sanctions for this case. To the extent of this article,.Law Plus shall present regulations regarding the case of employees being absent.without permission for five consecutive working days. ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

1. Conditions for determining that an employee’s absence without justifiable reasons 

As a rule, the employee who wants to be absent must have a justified reason.or obtain the agreement of the employer. The justified reasons include natural disasters, fires;.the employee or his/her family member suffers from illness.with a certification by a competent health facility;.and other reasons stipulated in the internal labor regulations. The employer agreed with other reasons. In other words, if left work for normal personal reasons,.the employee must request the permission.and obtain the agreement of the employer.

2. Imposing form of the labor discipline employees

a. Disciplinary measures:

If the employee is required to ask permission,.but they are absent without permission,.the employee may be considered a violation of labor discipline.and be disciplined in accordance with the labor regulations. The employer may also apply one of the forms.of discipline when the employee commits a violation,.depending on the extent. to which one of the following four forms is applied:

  • Reprimand.
  • Deferment of pay rise for up to 6 months.
  • Demotion. ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

Most seriously in case the employees are absent without permission,.the employer may take disciplinary measures to dismissal.to such employee. if in case the employee fails to go to work.for a total period of 05 days in 30 days,.or for a total period of 20 days in 365 days.from the first day he/she fails to go to work.without justifiable reasons.

However, in order to apply the form of discipline to employees,. the employers must follow the following principles and procedures:

  • The employer has to prove the employee’s fault.
  • The process is participated in by the representative organization of employees. to which the employee is a member;
  • The employee is physically present and has the right to defend him/herself,. and request a lawyer or the representative organization of employees. to defend him/her; if the employee is under 15 years of age,. his/her parent or a legal representative must be present;
  • The disciplinary process is recorded in writing.

Note: ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

  • It is prohibited to impose more than one disciplinary measure. for one violation of internal labor regulations.
  • When an employee commits multiple violations of internal labor regulations,. he/she shall be subjected.to the heaviest disciplinary measure. for the most serious violation.

b. The right to unilaterally terminate the contract: 

Furthermore, the employer has the right to unilaterally terminate the employment contract. for the employee are absent without justifiable reasons. for at least 05 consecutive working days. as prescribed in Article 36 of the Labor Code 2019.

Thus, if the employees are absent for 05 consecutive working days without justifiable reasons,. the employer may have the right to immediately dismiss employee without informing. Unless otherwise, when the employee is pregnant,. or raising a child under 12 months of age. who belonging to the case of unilateral termination of the employment contract,. the employer is prohibited from unilaterally terminating an employment contract.

ABSENCE WITHOUT PERMISSION FOR FIVE DAYS
ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

3. Procedures for imposing employees who absent without justifiable reasons

a. Procedures for imposing disciplinary measures:

Pursuant to Article 122 of the Labor Code 2019. and Article 70 of Decree No. 145/2020/ND-CP. on the procedures. for imposing disciplinary measures that the employer needs to know as follows:

Step 1: Make a minute of violations and collect evidence ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

When detecting that the employee has committed a violation of labor discipline.at the time of the violation, the employer shall make a minute of the violation.and notify the employee’s representative organization of the enterprise. in which the employee is a member, the legal representative of the employee.is not yet 15 years old. In case the employer detects a violation of labor discipline.after the time the violation has occurred,.the employee shall collect evidence to.prove the employee’s violations.

Step 2: Discipline meeting ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

In the statute of limitations for handling labor discipline,. the employer shall conduct a meeting to handle labor discipline. as follows:

  • At least 05 working days before the date of the meeting on handling of labor discipline,. the employer shall notify the contents, time and place of the meeting on handling of labor discipline,. the name of the person who handles labor discipline,. the violation of labor discipline. to the participants of the meeting, ensure these components receive notifications. prior to the meeting;
  • Upon receipt of the employer’s notice,. the participants must attend the meeting must confirm their attendance. at the meeting with the employer. In case one of the participants is unable to attend the meeting, according to the time or place notified,. the employee and the employer shall agree to change the time. and place of the meeting; in case the two parties fail to reach an agreement,. the employer shall decide the time and place of the meeting;.
  • The employer shall conduct a meeting to handle labor discipline from time to time,.the place notified. In case one of the participants must attend the meeting. without confirming to attend the meeting or is absent,. the employer shall still conduct a meeting to handle labor discipline. ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

b. Processing form: 

  • The contents of the meeting.on handling of labor discipline must be made in writing,.approved before the end of the meeting. and signed by the person attending the meeting,. in case someone does not sign the minutes,.the person recording the minutes clearly states the full name. and reasons for not signing (if any) in the minutes.
  • In the statute of limitations for handling labor discipline,.persons competent to handle labor discipline.shall issue decisions. on handling labor discipline.and send them to the participants.

c. Time limit for taking disciplinary measures:.

  • The statute of limitations for handling labor discipline is 06 months. from the date of the occurrence of the violation. The time limit for dealing with violations. directly relating to finance, assets, and disclosure of technology or business secrets shall be 12 months.
  • For employees (i) Absence of illness or convalescence; or on other types of absence. with the employer’s consent; (ii) Being held under temporary custody or detention;(iii) Waiting for verification and conclusion of the competent agency for employees. who commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace; discloses technological or business secrets. or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimentalv. or posing a seriously detrimental threat to the assets or interests of the employer; (iv) The female employee is pregnant, on maternal leave. or raising a child under 12 months of age.

At the end of the above-mentioned time,.in case the statute of limitations is still valid, the employer shall immediately handle the labor discipline, in case the statute of limitations expires,. the statute of limitations shall be extended for handling labor discipline. but not more than 60 days from the date of expiration. of the above-mentioned period.

  • The disciplinary decisions must be issued. within the statute of limitations for handling labor discipline.

4. Obligations after the termination of employment contract

Accordingly, the employer is responsible for paying severance allowance. as prescribed in Article 46 of the Labor Code The employer is responsible for paying severance allowance to the employee. who has worked on a regular basis. for a period of at least 12 months. Each year of work will be worth half a month’s salary, except for the cases.in which the employee. is entitled to receive a retirement pension.as prescribed by social insurance laws,.and the cases specified in Point e Clause 1 Article 36 of this Labor Code”. However, in the following case:

Article 8. Severance allowance, job loss allowance ABSENCE WITHOUT PERMISSION FOR FIVE DAYS

            b) The employee voluntarily quits his/her job without a good reason for 05 consecutive working days.or more specified in Point e.Clause 1 Article 36 of the Labor Code. Cases deemed to have justified reasons as prescribed in Clause 4,.Article 125 of the Labor Code.

Then, the employer is not responsible for paying severance allowance to the employee.in case they are absent from work.without justifiable reasons for at least 05 consecutive working days, as well as they are disciplined by dismissal (because of underlying Clause 8, Article 34 of the Labor Code 2019).

In addition, the two Parties also have responsibilities.when terminating the employment contract. Accordingly,.within 14 working days (or special cases that may last but must not exceed 30 days),.following the termination of an employment contract, both parties shall pay all payments. in respect of the rights and benefits of each party.

Moreover, the employer must complete the procedure. of closing the social insurance book.and return the other paperwork of the employee.

 

The above.are issues related to the absence from work.without the permission of employees without justifiable reason. For more information, please contact LawPlus at hotline +84 2862 779 399, +84 3939 30 522.or email info@lawplus.vn.

 

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