Dragon lawyer’s office consulting the Labor Code
Dear Lawyer Nguyen Minh Long and colleagues Dragon Law Firm- the Bar Association in Ha Noi city . Through the introduction I are knows a lawyer’s office Dragon in Hanoi free consultation online, so I have a question want to ask attorney : Lam Hoang Kim worked for we do from 1/2011, don’t the labor contract and company doesn’t have of his records Lam.
working 2 days then off end of in May (because wife having a baby )
June working to the date 18/01/2012.
On 18/01/2012, at 16:45pm he Lam go to office big voice, damaging the two plastic chairs, a computer blower ( Director room ). At that time no director at the company.
On 18/01/2012, the company confirmed was transfer money for his Lam (mandated expenditures)
Date 30/01/2012, company decision No. 01/2012 of discipline.
Date 15/02/2012, he Lam go to company taking to salary 01/2011 as normal , he have compensated the damage to the company but without records the reports .
Date 20/02/2012, he Lam sent a petition with to Go Vap District of Labour office to sue the company and claim compensation.
Date 28/02/2012, a new company decision to fix mistakes, invited him Lam work in companies, the reason: Have been the incident the reports.
Date 28/2/2012, he Lam resigned in the company and report the incident disturbances .
Date 07/03/2012, Labour office the mediation but failed
Mr. Lam requested as follows:
- The company must pay 45 days of wages officially (suspension notices do not give prior notice 45 days) He Lam applicant and off without prior notice 45 day ?
- Company payments these days he not working ( The time suspension period from the date of 30/01/2012 to 28/02/2012 after a new decision or to day payment of compensation on this).
The company payments two months’ wage ( termination of employment )
The company pays 17% of social insurance for the months he Lam worked at the company (From January 1/2011 or from 06/2011).
All these requirements with actual wage rate (6.500.000VND/ months) wasn’t fundamental wage.
Throughout the process his Lam work at the company, no to buy insurance, no insurance to retrospective collection, no personal income taxes and now he has not yet hands over the job at the construction sites.
Hope lawyer check the above requirements are right or wrong ? Because he Lam request issues on with the company, the company has decided to suspend the work, this decision is wrong (as Labour office say). Can help me see who is right and who is wrong ? how wrong it?
Also I have 2 questions outside :
1. In the case where workers on smashing up my company, I don’t have the right to fired them? And how can are true ?
2. If Mr.Lam don’t this sued and requiring 1, 2, 3 years after will sued, as such the company have to compensate all the time period 1, 2, 3 years for Mr.Lam.
Advisory Board lawyer’s office replied :
· Reviewers two decision No. TMS-QD-01/2012 on 31/01/2012 about disciplinary Mr. Lam, Mr.Tuan, Mr. Tien with the form of suspension of work indefinitely with reason: Not complete the work assigned and cause disorder in the company and decision No. 02/2012/QD-TMS on 31/01/2012 about the discipline Mr. Lam with form of disciplinary suspension of work from 30/01 / 2012 to date 29/02/2012 for reasons organizations of disturbing in the company.
As prescribed in Clause 1 Article 85 Labour Code regulations in 1994 has 3 forms of labor be disciplined , including reprimand, transfer to another job with lower pay in a maximum period of six months, layoffs. Form of suspension of work is not a form of discipline ( labor legislation nor a specified provision of the suspension of the work that only regulations on temporary suspension of work).
The Decision No. TMS-QD-01/2012 on 31/01/2012 about discipline Mr. Lam, Mr. Tuan, Mr. Tung with the form of suspension of work indefinitely - this can be considered a form of disciplined layoffs, Decision No. 02/2012/QD-TMS on 31/01/2012 about the discipline Mr. Lam with form of discipline suspension of work from 30/01/2012 to date 29/02/2012 there is be considered a form of temporary suspension of work.
Because director companies simultaneously to two decided to settle about on a problem that has two different workarounds , so I consider the following cases:
For decision No. TMS-QD-01/2012 :
As prescribed in Article 85 Labour Code provisions be form of disciplined labor is applied only in the following cases:
a) Workers have act of stealing , embezzlement, technology reveal the secrets, business or other acts causing serious damage to property, interests of business
(The extent of damage is considered severe is the damage caused over 5 million VND - Article 14 of Decree 41/1995/ND-CP).
b) Workers was be disciplined move to another job that recidivism in time has not clear the discipline.
c) Workers arbitrarily abandon their work seven days in a month or 20 days in a year without plausible reasons.
* If the total damage by the ruin the two plastic chairs and computer blower under 5 million VND that the company had layoffs, the company shall has violated the law.
In this case, as prescribed in Article 41, Article 42 Labour Code, the companies must have the following responsibilities:
- Receiving Mr. Lam back to work ;
- Compensation an amount corresponding to Mr. Lam salary in those days wasn’t working (from the date of dismissal the effective to date of the decision to accepted Mr. Lam back to work);
Mr. Lam not be compensate for an amount corresponding to his salary in the days required was heralded ( because defined in paragraph 3 of Article 38 of Labour Code layoff workers, the company has no obligation heralded )
Mr. Lam is not entitled to severance allowance because he did not meet the conditions specified in Clause 1 of Article 42 Labour Code ( Workers who regularly work in enterprises, agencies, organizations from a year or more).
* If the total damage by the ruin the two plastic chairs and computer blower on 5 million VND that the company had layoffs, the company shall doesn’t violated the law.
Against decisions No. 02/2012/QD-TMS
As prescribed in Article 92 of the Labour Code:
Company reserves the right to temporarily suspend Mr. Lam work when cases the violation have complicated circumstances, if it deems the workers to continue working would result in difficulty for the verify, after consultation of executive committee of the trade union basis.
- Time temporary suspension of work shall not exceed 15 days, in special cases must not exceed three months. In that time, Mr. Lam been advance 50% salary before work is suspended.
Upon the expiry of temporary suspension of work, Mr. Lam must be to continue working.
- If there are errors suffer disciplined labor, Mr. Lam also nor pay back money.
- If Mr. Lam do not at fault, the company must pay in full salary and salary allowances during the temporary suspension of work.
2. In event have workers smashing company, your company may fire them when the damage they cause is more than 5 million VND (as shown above).
As prescribed in Clause 1 of Article 167 of Labour Code, the statute requires the dispute settlement of individual labor , settlement be disciplined in the form of dismissal is one year. If Mr. Lam not resolved within required, the competent authorities will not solve.
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