Management knowledge
Procedure for Immediate Employee Termination: What HR Needs to Know
Procedure for Immediate Employee Termination: What HR Needs to Know
Procedure for Immediate Employee Termination: What HR Needs to Know
Procedure for Immediate Employee Termination: What HR Needs to Know
Anyone in Human Resources is likely to encounter this scenario at least once: an employee has passed their 2-month probation, signed a 1-year contract, and after 6+ months of work, the manager wants to let them go. So, what should HR do?
The Best Approach? A Mutual Agreement
At this point, it's often most effective for the manager or HR to sit down with the employee and negotiate a mutual agreement for resignation. The goal is to have the employee voluntarily submit a resignation letter. How this conversation is handled depends on the individual’s negotiation skills.
Before this direct confrontation, HR usually sets the stage by subtly signaling dissatisfaction. A common tactic is to increase scrutiny and point out more frequent errors in the employee's work.
One notable approach is from SeABank, as referenced in an internal complaint letter. HR professionals there threatened to use:
Article 31. Temporary Job Reassignment Due to Operational Needs
1. In cases of unexpected challenges (e.g., natural disasters, fire, epidemics, work safety issues, or production demands), the employer may temporarily assign the employee to a different role, not exceeding 60 cumulative workdays per year, unless the employee agrees otherwise.
2. The employer must give at least 3 working days’ notice, specifying the duration and job details.
3. Employees must be paid according to the new job, but not less than 85% of their previous salary for up to 30 working days, and not lower than the region’s minimum wage.
Or, Prompting the Employee to Resign Voluntarily
Article 37. Employee’s Right to Unilaterally Terminate Contract
Employees working under fixed-term or seasonal contracts may resign before contract end if:
a) Job or location differs from contract.
b) Salary not paid fully or on time.
c) Subjected to abuse, sexual harassment, forced labor.
d) Personal or family hardship.
e) Elected/appointed to a state or civil role.
f) Pregnant and advised to stop working by a certified clinic.
g) Illness or accident prevents continued work (after 90 days for fixed-term or 25% of term for seasonal contracts).
Note: Misuse of these clauses may risk violating criminal or other labor laws.
When the Employee Knows the Law and Refuses to Resign
If the employee understands their rights and refuses to resign, HR must follow legal termination procedures.
Article 38. Employer’s Right to Unilaterally Terminate Employment
1. Employers may terminate if:
a) Employee consistently fails to perform as per contract.
b) Employee is ill/injured for 12 consecutive months (for indefinite contracts) or 6 months (for fixed-term), with no recovery.
c) Production downsizing due to force majeure despite recovery attempts.
d) Employee is absent without cause after a period defined in Article 33.
2. Notice Period:
a) At least 45 days for indefinite-term contracts.
b) At least 30 days for fixed-term.
c) At least 3 working days for illness/injury cases or seasonal contracts.
Article 33. Return After Suspension
Employees must return within 15 days after suspension ends (per Article 32), unless otherwise agreed.
Downsizing? Prepare for Severance
Article 44 & 45 regulate changes due to restructuring or business mergers.
Article 49. Severance Pay
1. Severance is required for employees with 12+ months of service: one month’s salary per year worked (minimum two months).
2. Calculation excludes time covered by unemployment insurance.
3. Based on the average salary of the last 6 months before termination.
Termination Due to Poor Performance = Disciplinary Process
Article 123. Disciplinary Procedure
1. Conditions:
a) Employer must prove misconduct.
b) Trade union must be involved.
c) Employee must be present, with legal representation if desired.
d) All meetings must be documented.
2. Only one penalty per violation.
3. If multiple violations, apply the most severe appropriate penalty.
4. Cannot discipline employees who are:
a) On leave or ill.
b) Detained or awaiting investigation.
c) Pregnant or caring for a child under 12 months.
d) Under medical/mental conditions.
Dismissal Is Legal Only Under Specific Grounds
Article 126. Grounds for Dismissal
1. Theft, embezzlement, gambling, violence, drug use at work, leaking company secrets, or significant asset damage.
2. Repeat offenses during ongoing disciplinary period.
3. Unexcused absence for 5 days/month or 20 days/year.
Legitimate reasons include personal or family emergencies verified by certified medical institutions.
Illegal Termination? Expect Legal Consequences
Article 41. Illegal Termination
Termination violates Articles 37, 38, or 39.
Article 39. Employer Cannot Terminate When:
1. Employee is ill or injured and under treatment.
2. Employee is on approved leave.
3. Female employees who are:
a) Pregnant or caring for a child under 12 months.
b) On maternity leave.
Article 155. Maternity Protection
1. Pregnant employees (month 7+ or month 6+ in remote areas) cannot be assigned night shifts or overtime.
2. Pregnant employees may work reduced hours without pay cuts.
3. Employers cannot terminate women for reasons related to marriage, pregnancy, or maternity.
4. Disciplinary actions must be postponed during pregnancy or maternity leave.
5. Women get 30–60 minutes daily break during menstruation or while nursing a child under 12 months.
If Employer Terminates Illegally
Article 42. Employer Obligations for Illegal Termination
1. Reinstate employee and pay back wages, insurance, plus 2 months’ salary.
2. If employee refuses reinstatement, employer must pay severance (Article 48).
3. If employer refuses reinstatement and employee agrees, must pay at least 2 months’ salary extra.
4. If original job is unavailable, negotiate an alternate role.
5. If notice period was not honored, compensate accordingly.
Article 48. Severance Pay
1. Applicable when contract ends per Articles 36(1,2,3,5,6,7,9,10). Employees with 12+ months get half a month’s salary per year.
2. Excludes periods covered by unemployment insurance.
3. Based on 6-month salary average prior to termination.
Source: Nguyen Hung Cuong – blognhansu.net.vn
Reference: http://blognhansu.net.vn/2014/03/02/trinh-tu-quy-trinh-va-cach-thuc-duoi-cho-nhan-vien-nghi-viec-ngay-lap-tuc-nhu-the-nao/
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