If the employees who have actually worked for the employers for full 12 months or more are made redundant but working time serving as the basis for calculating the redundancy pay is less than 18 months, the employers shall offer the amount of redundancy pay equal to at least 02 months of salary to the employees.

Mr. Tran Minh (in Ho Chi Minh City) requested the following problem to be resolved:

An enterprise transferred management rights and employees working at the business for the parent company. Those who do not wish to continue working at the parent company will be offered redundancy pay.

According to the law, if the working time serving as the basis for calculating the redundancy pay is less than 18 months, the employers shall offer the amount of redundancy pay equal to at least 02 months of salary to the employees. However, there exists cases where employees have worked for the enterprise of full 12 months, but after deducting the time when employees paid for unemployment insurance then the working time serving as the basis for calculating the redundancy pay is 0.

Mr. Minh would like to ask, shall the employers offer the amount of redundancy pay equal to at least 02 months of salary to the employees in such above case?

RegardingMr. Tran Minh’s issue, Lawyer Tran Van Toan, the Khanh Hung Law Office - Hanoi Bar Association gives following opinion:

Article 14 of Decree No. 05/2015 / ND-CP dated January 12, 2015 of the Government stipulates that the employer shall give redundancy pay as prescribed in Article 49 of the Labor Code to employees regularly working for 12 months or more but losing their jobs due to technological, structural change or economic reasons or a merger, amalgamation, split or separation of enterprises or cooperatives as specified in Clause 10, Article 36, Article 44 and Article 45 of the Labor Code.

Working time serving as the basis for calculating severance allowance, redundancy pay shall be the total of actual working time subtracting the time when the employees pay unemployment insurance contributions as prescribed by law, and the working time when severance pay is offered by the employer.Of which:

The actual time when employees work for employers shall include the following periods such as time of employee’s working for the employer; probation, internship and apprenticeship that take place at the employer’s enterprise; time of the employer’s sending employees on courses; paid leaves of the insured employees under the provisions of the Law on Social Insurance; weekly days-off in accordance with Article 110, fully paid leaves in accordance with the Articles 111, 112,115 and Clause 1 of Article 116 of the Labor Code; time of employee’s staying away from work to join Trade Union activities in accordance with the law on trade unions; time of employee’s quitting or being kept away from work by no fault of the employees; time of employee’s being temporarily suspended, detained or jailed away from work after which the employees are permitted to come back to work on account of the competent authority’s reaching the conclusion that they are not guilty;

The time when employees pay for unemployment insurance shall include: the time when employers have paid for the unemployment insurance in accordance with the law, and the abovementioned time corresponding to the time when employees are paid a sum of salary equal to such unemployment insurance premiums in accordance with laws;

Severance redundancy payments in special cases:

Pursuant to Point a, Clause 4, Article 14 of Decree No. 05/2015 / ND-CP and Clause 4, Article 8 of Circular No. 47/2015 / TT-BLDTBXH, if the employees who have actually worked for the employers for full 12 months or more are made redundant but working time serving as the basis for calculating the redundancy pay is less than 18 months, the employers shall offer the amount of redundancy pay equal to at least 02 months of salary to the employees.

Mr. Tran Minh would like to ask, in case the employees haveactually worked for the employer for full 12 months, but after deducting the time when employees paid for unemployment insurance then the working time serving as the basis for calculating the redundancy pay is 0. Will the employees be offered redundancy pay?

This is a special case specified at Point a, Clause 4, Article 14 of Decree No. 05/2015 / ND-CP and instructions in Clause 4, Article 8 of Circular No. 47/2015 / TT-BLĐTBXH, applied to for employees who have actually worked for the employer for full 12 months, but working time serving as the basis for calculating the redundancy pay is less than 18 months.

According to the lawyer, the term " working time serving as the basis for calculating the redundancy pay is less than 18 months " in this provision is determined from 0 to less than 18 months, so employees have time. work for the employer for full 12 months, but after deducting the time when employees paid for unemployment insurance then the working time serving as the basis for calculating the redundancy pay is 0, the employers offerring the amount of redundancy pay equal to at least 02 months of salary to the employeesis regarded as eligible.