Answer:
As prescribed by labour law, for any Employee has have worked for full 6 months or over, the salary serving as the basis to pay for the annual leave days that Employee has not taken is the average contract salary of the 6 consecutive months prior to the calculation of the payment for the Employee’s unused leave days. Labour law does not have any guiding regulations whether the month in which Employees resign is counted into the 6 consecutive months or not in the case where Employee has worked for full 6 months or over. Being informally consulted by officers of the DOLISA of Ho Chi Minh City, we were told that the month when the Employee resigns is not included into the 6 consecutive months but such period will be counted from one prior to the time when Employees resign backwards. For example: If the Employee starts his or her job from 01/01 and resign on 15/7, the 06 consecutive months will include June, May, April, March, February and January.
On the contrary, for any Employee who has worked for
less than 6 months, the salary serving as the basis to pay for the annual leave
days that the Employee has not taken is the average contract salary of the
whole time when the Employee worked for the enterprise. In the case where the Employee
has not worked for one full month, as labour law does not provide a specific
guideline on how to calculate the average salary, there are differences amongst
the guidance and interpretation of the law of the provincial labour management State agencies where the
enterprise’s head offices are located, or even amongst those of the officers
handling the case in one state agency. In the opinion of officers of the DOLISA
of Ho Chi Minh City, for the case where the Employee has not worked for one
full month, the Employer may get an agreement from the Employee on whether the
days the Employee has been working in the month can be rounded to 1 month or
not. However, from the perspective of labour law and opinion of the labour
management State agencies
is to always prefer to protect Employee’s right and interest maximally, and to
minimise the legal risks of being considered as not paying salary for the
annual leave days that the Employee has not taken, the Employer should: (i)
expressly provide for this issue in the ILR which must be registered at the
competent local labour management State agency; or (ii) if the ILR has not provided this
issue, the Employer should reach agreements in writing with the Employee on it.
In addition, the Employer may consider calculating the average salary of the
whole working time by the method using the daily wage in case of not making up
a full month. In particular, the daily wage for 01 working day will be
determined by dividing the monthly salary by the normal number of working days
that is chosen by the enterprise as prescribed by law, but 26 days as a maximum[1].
[1]Article 4.4(c) of Circular 23/2015/TT-BLĐTBXH dated 23/06/2015 as amended and supplemented by Article 14.4(a) of Circular 47/2015/TT-BLĐTBXH dated 16/11/2015
