Employers are responsible for paying severance pay or severance allowances for the time the employee actually works for him / her and severance allowance for the duration that the employee actually works at the company before transferring the ownership or the right to use the property when the employee terminates the labor contract. The Computing and Construction Consultancy Joint Stock Company which formally was the Informatics Center directly under the Ministry of Construction, established in 1990. On February 16, 2000, the Computer Center was converted into a Construction Informatics Company that belonged to the Ministry of Construction. On January 30, 2007, the Construction Informatics Company was equitized into Construction Informatics and Construction Joint Stock Company (currently the State capital accounts for 49%). Through the system of receiving and responding to petitions of businesses, the Company requests functional agencies to guide the payment of severance allowances for the following cases:
Mr. Luong Hong Cuong started working on March 28, 1983 at Porcelain Tile Factory and Construction (under the Ministry of Construction). On July 15, 1994, Mr. Cuong moved to work at the Hotel and Cultural Services Company (under the Ministry of Culture and Information). On August 10, 2000, Mr. Cuong transferred his assignment to Construction Informatics and Construction Joint Stock Company. On August 1, 2018, Mr. Cuong terminated the labor contract (Labor Contract).
The Computing and Construction Consultancy JSC would like to ask, does the company calculates the time to pay Mr. Cuong's severance allowance from August 10, 2000 to July 31, 2018? For the period of time Mr. Cuong worked at the previous units (from March 28, 1983 to August 9, 2000), Is the company responsible for paying Mr. Cuong's benefits?
Regarding this issue, The Department of Labor Relations and Wages, the Ministry of Labor, War Invalids and Social Affairs, answer as follows:
The Labor Code 1994 (now superseded by the Labor Code 2012) took effect from January 1, 1995. Accordingly, from the effective date of the Labor Code 1994, there was no longer exists transfer regime for employees working under labor contracts.
When the employee leaves the company, the termination of the labor contract and the employer are responsible for paying severance pay to the employee as prescribed. In case the employee then works for another company, the labor contract must be concluded with the new employer.
According to Article 48 of the Labor Code 2012; Clause 1, Article 14 of the Government's Decree No. 05/2015 / ND-CP dated January 12, 2015, the employer is responsible for paying severance allowances to employees who have worked regularly for themselves. full 12 months or more when the labor contract terminates in accordance with Clause 1, 2, 3, 5, 6, 7, 9; Article 36 and the unilateral employer terminates the labor contract in accordance with Article 38 of the Labor Code.
According to Clause 2, Article 9 of Circular No. 47/2015 / TT-BLĐTBXH dated November 16, 2015 of the Ministry of Labor, War Invalids and Social Affairs, the employer is responsible for paying severance allowance under Article 48 or job loss allowance under Article 49 of the Labor Code, when the employee terminates his/her labor contract, for the period during which he/she has actually worked for the employer and severance pay for the period during which he/she has actually worked in the company before it transfers the right to own or use its assets (including the period of working prior to January 1, 1995, in the unit within the state sector where he/she has been last recruited before moving to work for this enterprise).
Based on the above provisions and comparing with the case of the company, the employee has time to work at the Construction Informatics Company (now known as Construction Informatics and Construction Joint Stock Company) from the 10th. August 8, 2000, until August 1, 2018, when the labor contract was terminated legally, the Construction Informatics and the Construction Joint Stock Company shall pay severance allowances to the employeeas prescribed in Article 48 of the Ministry of Labor Law and Article 14 of Decree No. 05/2015 / ND-CP mentioned above for the time employee work in the joint-stock companie and the period before equitization (from August 10, 2000 to August 1, 2018).