(Chinhphu.vn) – Mr. Dinh Xuan Tho's wife (in Hanoi) has been working for a company since 2011. In December 2016, his wife applied for a resignation, but the director requested to complete her job and resign after three months, then until March 2017, Mr. Tho's wife retired. After quitting, Mr. Tho's wife repeatedly requested the company to close the book and pay the social insurance book so that he could continue to pay social insurance when working at another company, but the company abolished for many reasons. Up to now it has been 1 year but the old company has not finalized the book and has not returned the social insurance book. Mr. Tho's wife has repeatedly requested to resolve but the director took the reason of closing social insurance book that not has been paid yet. In addition, the company owes his wife a salary of March 2017.
Mr. Tho would like to ask in this case, what does his wife need to do to ask businesses to pay social insurance books and pay her wages?
Lawyer Tran Van Toan, Khanh Hung Lawyer,s Office - Hanoi Bar Association responds to Mr. Dinh Xuan Tho as follows:
Clause 3, Article 37 of the Labor Code stipulates that workers working under labor contracts (labor contracts) with indefinite term may unilaterally terminate labor contracts, but must inform employers in advance less most 45 days.
The responsibility of the employer when terminating the labor contract (including the case where the employee unilaterally terminates the labor contract with notice period in accordance with Item 3, Article 37 of this Code) is stipulated in Items 2 and 3, Article 47 of the Labor Code is as follows:
- Within 7 working days from the date of termination of the Labor Contract, the two parties are responsible for paying all amounts related to the interests of each party; In special cases, it may be extended but not more than 30 days.
- Employers are responsible for completing procedures to confirm and return social insurance books and other documents that employers have retained by employees.
According to Mr. Dinh Xuan Tho, his wife had worked for the company since 2011. In December 2016, she quited her job. The company required her to quit her job after after 3 months (after 90 days). his wife just quited her job by the end of March 2017, so his wife informed the company that she would quit her job 90 days in advance. Although Mr. Tho's wife retired from her company for more than 1 year, the company still not returned the social insurance book and salary in March 2017 to his wife.
If it is true as Mr. Tho reflected, Mr. Tho's wife needs a written request to the company’s director to immediately perform the responsibility to the employees when terminating the labor contract in accordance with Clause 2, Clause 3, Article 47 of the Labor law.
May request the court to resolve the dispute
Article 200 and Article 201 of the Labor Code stipulates that individuals and competent agencies to resolve individual labor disputes are labor mediators and people's courts.
For labor disputes on compensation for damages and allowances when termination of labor contracts and social insurance disputes in accordance with the law on social insurance, workers may sue immediately in court without having to do disputes procedure.
According to Clause 2, Article 202 of this Law, the statute of limitations for requesting a court to resolve an individual labor dispute is 1 year from the date of discovery of the act that each of the disputing parties considers their legitimate rights and interests violated.
Therefore, after a written recommendation that the company continues to fail to fulfill their responsibilities, Mr. Tho's wife should urgently send a petition to the people's court where the company has its headquarters and request the court to resolve, forcing the company to perform its responsibilities when terminating the labor contract with his wife in accordance with Clause 2, Item 3, Article 47 of the Labor Code, paying full wages and other related expenses benefits; complete procedures for certifying and returning social insurance books and other documents that the company has kept by his wife.
Lawyer Tran Van Toan
The Khanh Hung Lawyer’s Office - Hanoi Bar Association