When unilaterally terminating a LC with an Employee due to an epidemic, the enterprise should note that both of the following important conditions must be met:
1. There must be an actual epidemic happening in the locality where the Employee is working. As for the concept of “dangerous epidemics”, the Labour Code does not have specific instructions to interpret how dangerous epidemics are. Therefore, the Employer must rely on relevant regulation of the specialised laws. Specifically, pursuant to Article 2.13 of Law on Prevention and Control of Infectious Diseases, epidemic means the occurrence of an infectious disease with the number of infected people exceeding the normal number of people infected in a specified period of time in a specified areaand the declaration of the disease will be made by an authorised persondepending on the severity of illness they cause and their infection rates.
Specifically, (i) for class C infectious diseases, including diseases with low risk and low infection ratesand class B includes dangerous infectious diseases capable of rapid transmission and possibly causing death, the Chairman of the Provincial People’s Committee will declare the epidemic on the recommendation of the Director of the Department of Health; (ii) for class A infectious diseases and for some class B infectious diseases infecting two or more provinces/ municipalities under the command of the central government, the Minister of Health is the authority to declare the epidemic on the recommendation of the Chairman of the Provincial People’s Committee; (iii) for class A infectious diseases spreading rapidly from one province to another, seriously affecting human life and health, the Prime Minister will be the one to announce the epidemic on the recommendation of the Minister of Health. Therefore, the determination of whether an epidemic is occurring or not should be based on the official declaration of the authorised person depending on the type of infectious disease and the extent to which the infectious disease is spread.
2. The Employer has sought “all remedies” but is still forced to reduce production and reduce the workplace. With this content, the Labour Code has no specific provisions on the concept of “all remedies” that the Employer is forced to take to satisfy this condition because the implementation of remedial measures depends on not only the actual situation happening at the enterprise and in the locality but also the capacity of the Employer. Therefore, the application of the remedies will depend on the specific business and financial situation of each enterprise, the Employer must prove that all possible remedies have been taken within its capacity but it was forced to reduce production, reduce workplaces to survive and maintain operations.
Given the fact that there are no specific legal regulations on the remedies that the Employer must take before making a decision to unilaterally terminate a LC, if the Employer wants to proceed with unilateral termination the LC with the Employee without taking the necessary remedies or having taken remedies but could not clearly and thoroughly prove that all possible remedies have been taken, there is still a legal risk that the termination of the LC will be considered unlawful by the competent Court if there is a dispute with the Employee. In that case, the Employer must bear legal consequences as prescribed, including receiving the Employee back to work and paying the Employee full salary, and social insurance, health insurance and unemployment insurance for the period from the effective day of the illegal decision on LC termination until the Employee officially returns to work and paying the Employee at least extra 02 months’ salary under the LC.
In fact, for the implementation of all remedies before being forced to unilaterally terminate the LC with the Employee, the Employer must implement step by step and in a reasonable period of time depending on the specific business condition of the Employer which should be executed in the following order:
(i) Transferring the Employee to another job within the enterprise;
(ii) If the epidemic is prolonged or the enterprise does not have any vacancy, the enterprise must negotiate an agreement on termination with the Employee;
(iii) If it is not satisfactory or the Employee does not agree with the salary for retrenchment, the Employer shall continue to persuade the Employee to postpone the labour contract performance during the epidemic; and
(iv) After implementing the above plans, but the situation is still not optimistic, the Employer can take the last measure, which is to announce the decision to unilaterally terminate the LC with the Employee.
If the above measures could be taken in full gradually from low to high and can be implemented within a reasonable time depending on the business performance of each enterprise, the legal risk can be reduced for the enterprise if there is a dispute arising with the Employee about unilaterally terminating the Labour Contract.
Article 36.1 (c) of the Labour Code
Article 2.13 of the Law on Prevention and Control of Infectious Diseases
Article 38.1 (b) of the Law on Prevention and Control of Infectious Diseases
Article 38.2 of the Law on Prevention and Control of Infectious Diseases
Article 41.1 of the Labour Code