Is it possible for employees to take leave while they are on unpaid leave?

Wed, 31 Mar 2021 13:32:00  |  Print  |  Email   Share:

A reader who has email address as viethungx @ xx asked: During my working time, leaders requested me to pay them in advance for business trips, but then because there was no voucher to refund, the company forced me to pay the amount, but I have not paid enough. Now I quit my job, the company does not return my social insurance book to me, is it right?. Is it true that the company force me to quit my job while I am on leave without pay?

The Labor Newspaper's legal consultancy office replied:

In principle, when you make an advance payment from the company, you are obligated to go through the procedure for the company to pay you that amount. Payment must be based on legal documents. Therefore, if you do not have legal documents, it is considered that you have not fully returned financial obligations to the company.

Ideally, you should consolidate the evidence to prove that the advance is only for the leader, not for you, and ask that person to hand you the documents to pay the provisional applicationamount.

Regarding keeping the social insurance book, in principle, the company must close and return the social insurance book to you when you quit your job. However, according to the provisions of Clause 2, Article 47, of the 2012 Labor Code: "Within 7 working days from the date of termination of the labor contract, the two parties are responsible for paying the full is related to the interests of each party; in special cases, it may last for no more than 30 days ".

Therefore, the Company keeps your social insurance books for the purpose of paying both parties in full for each other's benefits.

Article 39 of Labor Code 2012 provides for the cases in which the employer is not allowed to exercise the right to unilaterally terminate the labor contract as follows:

1. The employee is suffering from an illness or work accident, occupational disease and is being treated or nursed under the decision of a competent health institution, except for the cases stipulated in item b, Clause 1 Article 38 of this Code.

2. The employee is on an annual leave, personal leave, or any other type of leave permitted by the employer;

3. The female employee in the case stipulated in Clause 3 of Article 155 of this Code.

4. The employee on maternity leave in accordance with the Law on Social Insurance

Therefore, during the time you take a private leave without pay with the employer's consent, the employer is not entitled to terminate the employment contract with you.

By: Online NAM DƯƠNG(Labor Newspaper)/ Translator: HaiYen-Bizic


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