Mr. Duong Quy Ngoc (in Can Tho Province) asked, the employee has completed the procedures to receive the pension but continues to work for the company, which is the transitional subject in Clause 2, Article 38 of Decree 05 / 2015 / ND-CP, will the company have to pay severance allowance when the employee leaves? Regarding this issue, the Ministry of Labor - Invalids and Social Affairs answers as follows: In case an employment contract is terminated in compliance with the provisions in Clause 1, 2, 3, 5, 6, 7, 9 and 10, Article 36 of this Code, the employer is responsible for paying severance allowance to the employee who has worked regularly for a period of at least full 12 months. A half of the monthly wage is payable for each year of work.
Accordingly, when the employee fully meets the requirements of qualified contribution period of social insurance and reaches the age of retirement stipulated in Article 187 of this Code, (Clause 4, Article 36 of Labor Code) Employers are not responsible for paying termination allowances to employees.
According to Clause 1, Article 166 and Clause 2, Article 167 of the Labor Code, the elderly employee is the person who continues to work after the age specified in Article 187 of this Code; When retired, if working under a new labor contract, in addition to the benefits currently enjoyed under the retirement regime, the elderly employee is entitled to the benefits agreed upon under the labor contract.
Currently, the Labor Code and legal documents guiding the implementation of severance payments, irrespective of employees who have or have not taken retirement benefits.
Therefore, in case the employee who has taken leave to enjoy the retirement benefits and works for the employer for 12 months or more under the labor contract, when the labor contract is terminated in accordance with the law, the employer is responsible for paying severance allowance to employees according to regulations.