How to resolve if the Company does not pay the social insurance book when leaving work
Mr. Nguyen Minh submitted his resignation letter to the company from July 2021. While working, he borrowed some money from a colleague, unrelated to the company. When settling the resignation, the company used the reason that Mr. Minh borrowed money from a colleague, so he did not return the social insurance book to him. Mr. Minh asked, is the company doing it right? What do you need to do for the company to pay the social insurance book?
Lawyer Tran Van Toan, Law Office of Khanh Hung - Hanoi Lawyer Association answered the question Mr. Minh asked as follows:
Article 48 of the Labor Code 2019 stipulates the responsibilities when terminating a labor contract as follows:
Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying in full all amounts related to the interests of each party, except for the following cases: The employer is not is an individual who ceases to operate; employer changes structure, technology or for economic reasons; division, separation, consolidation, merger; sale, lease, change the type of business; transfer of ownership, right to use assets of enterprises or cooperatives; due to natural disasters, fires, enemy sabotage or dangerous epidemics, the duration may be extended, but must not exceed 30 days.
Salary, social insurance, health insurance, unemployment insurance, severance allowance and other benefits of employees under the collective labor agreement, labor contract shall be prioritized for payment in case the enterprise or cooperative is terminated ceased operation, dissolved, or bankrupt.
The employer has the following responsibilities: Complete the procedures for confirmation of the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other papers if the employer has kept them from the employee; provide copies of documents related to the employee's working process if the employee requests it. The cost of copying and sending documents is paid by the employer.
Clause 5, Article 21 of the Law on Social Insurance 2014 stipulates the responsibilities of the employer as follows: Coordinating with the social insurance agency in returning the social insurance book to the employee, confirming the time of payment of social insurance when the employee terminates the labor contract, employment contract or termination of employment as prescribed by law.
At Point d, Clause 4, Article 40 of the Government's Decree No. 28/2020/ND-CP dated March 1, 2020, a fine of between 2,000,000 VND and 4,000,000 VND is imposed on each employee but a maximum of not more than 75,000,000 VND for the employer who fails to return the social insurance book to the employee as prescribed in Clause 5, Article 21 of the Law on Social Insurance.
Pursuant to the above provisions, when terminating the labor contract with Mr. Nguyen Minh, the company is responsible for completing the procedures to confirm the time of payment of social insurance and unemployment insurance premiums and return the social insurance book together with the other original documents if the company has kept them.
The fact that Mr. Nguyen Minh borrowed money from an individual colleague working with the company is a civil transaction. If there is a dispute over the loan contract about the loan amount, interest rate, loan term, the parties need to negotiate, conciliate, or initiate a civil lawsuit to request the Court to settle.
When terminating the labor contract with Mr. Nguyen Minh, but the company retains the social insurance book to settle the loan contract dispute between Mr. Minh and other individuals, which is not within the competence and illegal, affecting Mr.Minh’s social insurance benefits.
Mr. Minh needs to make an application requesting the director of the company to return the social insurance book according to the provisions of Clause 5, Article 21 of the Law on Social Insurance 2014 and Clause 3, Article 48 of the Labor Code 2019. If not, send the application to the Department of Labor - Invalids and Society where the company is located to be dealt with by regulation.
By: Translator: LeAnh-Bizic
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