Question: DTD & Associates LLP let me ask: I have worked for a construction company under an indefinite-term employment contract since 01/03/2015 and have participated in social insurance since that day. From 6/10 to 17/10/2020, I quit my job and did not give prior notice to take care of my grandmother who was in hospital. After that, I returned to the company. However, the director gave me the sack for claiming that the reason for my absence was unacceptable. I found that my action is completely legal in accordance with the law because the employee has the right to leave without permission if their relative is sick and has a confirmation of medical examination. What can I do in this case to protect my rights? I sincerely thank you!
Answer: Hello, thank you for your trust and for submitting your question to DTD & Associates LLP's legal consulting department. The content of your question has been researched and consulted by our legal team as follows:
Legal grounds:
- Labor Code No.10/2012/QH13 promulgated by The National Assembly dated June 18, 2012 (“Labor code 2012”)
- Law on employment No.38/2013/QH13 promulgated by The National Assembly dated November 16, 2013 (“Law on employment 2013”)
- Decree No.05/2015/ND-CP promulgated by The Government defining and providing guidance on the implementation of a number of contents of the Labor Code (“Decree No.05/2015/ND-CP”)
Firstly, reasons for absence: According to Clause 3, Article 126 of the Labor Code 2012 (specifically guided in Point b of Clause 2, Article 31 of Decree No.05/2015/ND-CP), employees leave their jobs for good reasons in cases such as: Themselves, fathers, mothers, adoptive fathers, adoptive mothers, father-in-law, mother-in-law, mother-in-law, spouses, children and legal adopted children are sick with certificates of medical examination and treatment establishments established and operating in accordance with law. Therefore, your absence to take care of your sick grandmother without permission will not be considered as a plausible reason.
Secondly, the application of dismissal as a form of discipline: Clause 3, Article 126 of the Labor Code 2012 provides for the application of dismissal disciplinary forms as follows: "The form of disciplinary dismissal is applied by the employer in the following case: An employee has been absent from work without permission for a total of 5 working days within 1 month or 20 days within 1 year without plausible reasons."
In this case, you have quit without notice and plausible reason from October 6th to October 17th, 2020. The total time you quit your job has exceeded 05 accrued days in 01 month. Therefore, the employer has the right to apply disciplinary action to you.
Thirdly, the legal consequences of termination of the labor contract: As stipulated in Clause 2, Article 47 of the Labor Code 2012, within 07 working days after the termination of the labor contract, the two parties are responsible for paying in full the sums related to the interests of each party; in special cases, which may last but must not exceed 30 days. Thus, within the above period, the employer has obligation to pay the salary and other types of support pensions (if any) which are not paid untill the last working day to you. In addition, the company must complete the confirmation of the time of social insurance, unemployment insurance and related documents.
