Determining work time to severance allowance calculation

Determining work time to severance allowance calculation

(Chinhphu.vn) - Mr. Nguyen Viet Tam (in Hanoi), whois 51 years old, is a map surveying worker at the Topographic Survey Group, Department of State Surveying and Mapping from December 1985, having payment of social insurance. He would like to request for instructions on determining working time to calculate severance allowance.

The working time development of of Mr. Nguyen Viet Tam is as follows:

- In June 1987, the Council of Ministers (now the Government) issued a Decision to rearrange the units belonging to the State Cartography Survey Department, in which the Topographic Survey Division becomes the Geodetic Federation - Terrain I .

- In January 1988, the State Map Survey Department issued a Decision to set up units under the Geodetic Federation - Terrain I, including Geodetic Survey - Terrain 101; 102; 103; 104 ..., Mr. Tam belonged to the personnel list of Trac Dia Group- Terrain 103.

- In September 1992, the Geodesy Survey Department issued a decision to change the name of the Geodetic Federation - Terrain I into Geodetic Enterprise - Map No.1. Surveying Enterprise 103.

- In July 1994, the General Department of Land Administration issued a decision to change the name of the managing agency of the Geodetic Enterprise - Map No. 1 (including the Surveying Enterprise 103), previously under the Department of Geodesy. The State map was transferred directly to the General Department of Land Administration.

- In August 1996, the General Department of Land Administration issued a Decision to change the name of the Geodetic Survey Enterprise - Map No. 1 into Map Survey Company No. 1, including Map Survey Enterprise 103.

- In October 1998, the General Department of Land Administration issued a decision to set up two companies, including the Topographic Survey Company and the Cadastral and Construction Company on the basis of reorganizing Map Survey Company No. 1, No.2, No.3. In which, Site Survey Enterprise 103 belongs to the Cadastral and Construction Company.

- In September 1999, according to Mr. Tam's personal needs, the Land Administration and Construction Company issued a decision to transfer him to the Topographic Survey Company and was assigned to work at the Topographic Survey Enterprise.

- In August 2005, the Topographic Survey Company made a decision to establish the Topographic Survey Enterprise II on the basis of separating a part of the Topographic Survey Enterprise, including Mr. Tam.

- In November 2009, the Ministry of Natural Resources and Environment issued a decision to set up Vietnam Natural Resources and Environment Corporation on the basis of reorganizing Topographic Survey Company and Cadastral Company and Works.

- In February 2010, the Ministry of Natural Resources and Environment issued a Decision to establish the Marine Natural Resources and Environment Company (a subsidiary of Vietnam Natural Resources and Environment Corporation) on the basis of reorganizing the measurement enterprise. Topographic Survey II of Topographic Survey Company, including Mr. Tam.

- In April 2016, the Company was equitized (operated as a joint stock company) and in April 2018 divested all State capital at the company.

- In June 2018, Mr. Tam would like to terminate the labor contract (Labor Contract) and was approved by Joint Stock Company of Natural Resources and Environment and issued a Decision to terminate the labor contract for him from June 16, 2018, At the same time, Thanh Xuan Social Insurance confirms that his paying insurance time is 32 years and 7 months.

Regarding the rights of employees when terminating the contract (severance allowance), Human Resources Manager of Marine Resources and Environment Joint Stock Company only proposed to settle the severance allowance for Mr. Tam from October / 1999 up to now, in September 1999, he transferred his work from the Cadastral and Works Company to the Topographic Survey Company.

Mr. Tam would like to ask, in the case that he had the above working process, when he terminated his labor contract at Joint Stock Company of Marine Environment and Resources from June 16, 2018, which time is right for him to receive severance allowance?

Lawyer Tran Van Toan, the Khanh Hung Lawyer’s Office – the Hanoi Bar Association answers Mr. Nguyen Viet Tam as follows:

At the time Mr. Nguyen Viet Tam resigned his job at the Cadastral and Construction Company (September 1999) to move to the Topographic Survey Company, the Labor Code 1994 (took effect from January 1 / 1995) and the labor law no longer stipulates the transfer regime for employees under labor contracts. If the employee resigns from one enterprise to work for another, then terminates the labor contract in the old enterprise and concludes the labor contract in the new enterprise.

At that time, the severance allowance regime shall comply with the provisions of Article 42 of the Labor Code 1994, when terminating labor contracts for laborers who works regularly in enterprises, agencies or organizations from one year or more, the employer is responsible for severance allowance, which is half a month's salary for each year of employment, plus a wage allowance, if any.

According to the above provisions, when Mr. Tam resigned, the Cadastral Company were responsible for paying severance allowances for the time Mr. Tam worked for the Company and the agencies, managing unitswhich are this company’s precursor from December 1982 to the end of September 1999.

Since the Cadastral and Construction Company and the Topographic Survey Company were two independent legal entities, the decision of the Land Administration and Construction Company to transfer Mr. Tam to the Geodesic Company topography, instead of the decision to terminate the labor contract and not pay severance allowances for Mr. Tam was not in accordance with the regulations.

From October 1999, Mr. Tam moved to work under the labor contract regime at the Topographic Survey Company, which was the precursor of Marine Resources and Environment Company. In April 2016, the Company was equitized and operated as a joint stock company and in April 2018 divested all State capital at this company.

In June 2018, Mr. Tam submitted an application to terminate the labor contract and was approved by the Joint Stock Company of Natural Resources and Environment, issuing a Decision to terminate the labor contract for him from June 16, 2018.

Pursuant to Clause 2, Article 48 of the 2012 Labor Code (effective from May 1, 2013), the working time used for calculating severance allowance is the total time the employee has actually worked for the employee. The employer will deduct the time the employee has participated in unemployment insurance in accordance with the Law on Social Insurance and the working time has been paid for severance pay by the employer.

Specifically, the time to calculate the severance allowance for Mr. Tam is the total actual working time for the Topographic Survey Company, Marine Resources and Environment Company and Natural Resources and Environment Joint Stock Company. From October 1999 to the end of June 2018, minus the time Mr. Tam has participated in unemployment insurance in accordance with the Law on Social Insurance from January 1, 2009 to June 16, 2018.

According to the lawyer, the last company, Marine Resources and Environment Joint Stock Company, has inherited the obligations of the State company before equitization. Mr. Tam worked for a company formerly known as Topographic Survey Company, from October 1999 until the end of the labor contract, to calculate the severance pay for Mr. Tam as prescribed.

Lawyer Tran Van Toan

Khanh Hung Layer’s Office, the Hanoi Bar Association

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