An employee whose actual works for the employer full 12 months or more loses his job but the working time for calculating unemployment allowance is less than (below) 18 months, the employer is responsible for paying unemployment allowance to employees at least equal to 2 months' salary.

Mr. Tran Minh (in Ho Chi Minh City) would like to ask for an answer the following problem:

An enterprise transfers management rights and employees are working at the business for the parent company. Some employees who do not want to continue working at the parent company will receive job loss benefits.

According to the regulations, employees who have worked for a period of less than 18 months and lose their job will be entitled to a subsidy equal to 2 months' salary. However, there are cases where employees have actual working time for the enterprise for full 12 months, but because the time of participation in unemployment insurance is equal to the actual working time, the working time is calculated level of job loss is zero.

Mr. Minh asked, does the above employee is entitled to a subsidy equal to 2 months' salary?

An enterprise transfers management rights and employees are working at the business for the parent company. Some employees who do not want to continue working at the parent company will receive job loss benefits.

Lawyer Tran Van Toan, the Khanh Hung Lawyer’s Office – the Hanoi Bar Association answers Mr. Tran Minh as follows:

Article 14 of Decree No. 05/2015 / ND-CP dated January 12, 2015 of the Government stipulates, 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. In 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;

Unemployment benefits in special cases

According to 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-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 employee has actual working time for the enterprise for full 12 months, but after deducting the time of participation in unemployment insurance equal to 12 months, the working time is calculated as the unemployment allowance equal zero, so will they be paid for unemployment allowance?

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, applicable to employees who have worked for the employer for 12 months, but the working time for calculating unemployment allowance is less than (below) 18 months.

According to the lawyer, the concept of "working time to calculate unemployment allowance is less than (under) 18 months" in this regulation is determined from 0 to less than 18 months, so employees have time.to work for the employer for full 12 months, but after deducting the time of participation in unemployment insurance equal to 12 months, but the working time to calculate the unemployment allowance is 0, the enterprise paying for unemploymentallowances to employees by 2 months' salary is suitable as prescribed.

Lawyer Tran Van Toan,

The Khanh Hung Lawyer’s Office – the Hanoi Bar Association