(Chinhphu.vn) – Mr. Le Ngoc Huynh (in Hochiminh City) would like to ask authorities to clarify some regulations on termination of labor contracts for employees eligible for enjoyment of  pension.

Mr. Le Ngoc Huynh's unit was advised by his lawyer and recognized that his unit had a right to terminate labor contracts with employees who are eligible for enjoyment of pensions without an agreement due to the following reasons:

- Law on Social Insurance 2014, Decree No. 115/2015 / ND-CP dated November 11, 2015 detailing some articles of the Law on Social Insurance and compulsory social insurance; Circular No. 59/2015 / TT-BLĐTBXH dated December 29, 2015 detailing and guiding the implementation of a number of articles of the Law on Social Insurance and compulsory social insurance that all guided the calculation of retirement age in this case is enough 55 age (male) and 50 years old (female).

According to Clause 4, Article 36; Clause 2, Article 187 of the 2012 Labor Code; Point b, Clause 1, Article 54 of the Law on Social Insurance 2014, It is only when employees do heavy and hazardous jobs to reach the minimum age to calculate the retirement age (55 years for men; 50 years old for women) and meet the conditions of time of social insurance premiums, the unit has the right to terminate the labor contract without having to agree with the employee.

 - Conditions for termination of labor contracts to employees who work in heavy, hazardous and dangerous occupations (with 2 conditions) that are full 20 years of social insurance premiums or more; male employees aged between full 55 and 60 years old, females aged between full 50 and 55 years old who have 15 working years of heavy, hazardous or dangerous or jobs.

- Upon termination of the labor contract, the unit must ensure compliance with the responsibilities of the employer in accordance with Article 47, Labor Code 2012.

- If the employee continues to work after the age specified in Article 187 of the 2012 Labor Code, they will be identified as elderly workers. According to Article 167 of the 2012 Labor Code, when an employer needs it, an employer can reach an agreement with a senior employee who has enough health to extend the working time or enter into a new labor contract. However, employers must not use elderly workers to do heavy, toxic or dangerous jobs that adversely affect the health of elderly workers ...

Mr. Huynh awould like to ask, is the right to terminate the labor contract according to the above content? If so, how is the right of employees in this case protected by law? If not, is this a unilateral termination of the illegal labor contract? What do employees have to do to be protected?

Regarding this issue, The Ministry of Labor, War Invalids and Social Affairs responds as follows:

Under the provisions of Clause 4, Article 36 of the Labor Code, The employee fully meets the requirements of qualified contribution period of social insurance and reaches the age of retirement stipulated in Article 187 of this Code.

According to Clause 1 and Clause 2, Article 187 of the Labor Code, employees, who meet the condition of qualified period, as prescribed by the law on social insurance, shall receive an old-age pension at the age of 60 for men and 55 for women.. Employees whose capacity to work have been declined; or who undertake heavy, hazardous or harmful work; or work in mountainous areas, remote areas, border areas or island areas, as regulated in the List of the Government, can retire at a younger age than the age stipulated in Clause 1 of this Article. (lower than 60 for men, 55 for women). 

According to the provisions of Point b, Clause 1, Article 54 of the Law on Social Insurance Being between full 55 years and full 60 years old, for men, or between full 50 years and full 55 years old, for women, and having full 15 years doing heavy, hazardous or dangerous occupations or jobs or extremely heavy, hazardous or dangerous occupations or jobs on the list jointly issued by the Ministry of Labour - Invalids and Social Affairs and the Ministry of Health, or having full 15 years working in areas with a region-based allowance coefficient of 0.7 or higher.

According to Article 47 of the Labor Code, Within 07 working days following the termination of an employment contract, the two parties shall settle all payments in respect of their rights and interests of the two parties; in special cases, such period may be extended, but shall not exceed 30 days. The employer shall be responsible for completing the verification procedure and return the social insurance book, and other documents of the employee which are kept by the employer.

Thus, in the case of men who are from full 55 years to under 60 years old, women who are from full 50 years old to under 55 years old have enough 20 years to pay social insurance and have 15 years to do heavy, toxic and dangerous jobs or particularly heavy, toxic and dangerous on the list promulgated by the Ministry of Labor, War Invalids and Social Affairs or the Ministry of Health, or having full 15 years working in areas with a region-based allowance coefficient of 0.7 or higher, they are eligible to resign and enjoy retirement benefit and belong to the case of termination of labor contracts in accordance with Clause 4, Article 36 of the Labor Code.

Upon termination of a labor contract, the employer and the employee shall be responsible to comply with the provisions of Article 47 of the Labor Code.