Question 143. Pursuant to Article 41 of the Labour Code, an Employer must reinstate an Employee in case of unlawful unilateral termination of a LC. So, if the Employer no longer has the working position, job as agreed in the LC and the parties cannot agree on a new position with a new salary, what can the Employer do in such a situation?


Pursuant to Article 41.4 of the Labour Code, if there is no longer the position or the job as agreed in the LC, but the Employee still wishes to work, in addition to the compensation as regulated in the labour laws, the two parties will negotiate to amend or supplement the signed LC. Otherwise, the parties will continue to execute the signed LC if they cannot reach an agreement on amending or supplementing the LC[1]. Therefore, if the two parties cannot agree on a new job with a new salary for the Employee, the Employer must still allow the Employee to continue to work at the enterprise and execute the signed LC even though whether there is the agreed job at that time or not.

During the time the Employer cannot arrange the job as agreed in the LC, the Employer may negotiate with the Employee to terminate the LC pursuant to Article 34.3 of the Labour Code, or to temporarily suspend the LC pursuant to Articles 30 and 31 of the Labour Code.

If an agreement with the Employee cannot be reached, the Employer may exercise the right to allocate labour forces according to the needs of production and business to temporarily assign the Employee to another jobs than that in the signed LC, but the duration of which cannot last longer than 60 cumulative working days in a year[2]. Of note, to resort to this measure, the Employer must prescribe in the ILR that the Employer may temporarily assign the Employee to another job different than that in LC due to the need of production and business[3]. At the same time, the Employer must ensure that the Employee will receive a new salary in full for the new job; if the new salary is lower than the previous one, the previous salary will be maintained for 30 working days. The salary for the new job must be at least 85% of the previous salary but not lower than the minimum area wage rate at that time[4].

In addition, the Employer may consider allowing the Employee to stop working and pay out-of-work salary for the reason that the Employer does not have work to assign to the Employee. Other than the causes of electricity, water, natural disasters, fires, epidemics, dangers, hostility, removal of operating locations at the request of competent State agencies or due to economic reasons, the Labour Code does not expressly prescribe other cases where an Employer may allow the an Employee to stop working and the maximum out-of-work duration[5], but the Employer is required to pay the full salary to the Employee in case the Employee does not have work to do due to the Employer’ faults. The salary which serves as the basis for paying the Employee during the out-of-work duration prescribed in Article 99.1 of the Labour Code is the one stated in the LC applicable when the Employee must stop working and calculated according to the time-related salary payment methods.[6] In addition, during the time when the Employee receives out-of-work salaries, the Employee and Employer still have to pay compulsory insurance premiums according to the salaries that the Employee receives during this time.[7]

The application of the legal provisions of labour law on allowing the Employee to stop working in the circumstance above is also in line with the Law on Enforcement of Civil Judgments. Accordingly, the Employer must pay salary to the Employee during this out-of-work duration pursuant to the court judgment, counting from the date of the written request for judgment enforcement to the time the Employee is back to work[8].

[1] Article 33 of the Labour Code.

[2] Article 29 of the Labour Code.

[3] Article 29 of the Labour Code.

[4] Article 29.3 of the Labour Code.

[5]Article 99 of the Labour Code

[6]Article 99.1 of the Labour Code

[7]Article 30.6 of Circular 59/2015/TT-BLĐTBXH of the MOLISA

[8]Article 121.3 Law on Enforcement of Civil Judgments