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| Inside the toy manufacturing plant of Innoflow NT Co. Ltd. in Du Long industrial park, Ninh Thuan province__Photo: VNA |
I’m a foreigner and currently working for a Vietnamese company at its head office in Hanoi. Last week, my boss asked me to move to Bac Ninh province to temporarily take charge of a vacant position at the company’s branch there. Honestly, I don’t want to take the new job but I have no intention to leave the company right now. Does my boss have the right to assign me to perform a job other than that stated in the employment contract I have signed with the company? If so, will my benefits be guaranteed upon the job transfer?
Article 28 of the 2019 Labor Code of Vietnam (the Code) stipulates: “The jobs under a labor contract will be performed by the employee who has entered into the contract. The workplace shall be as indicated in the labor contract, unless otherwise agreed upon by the two parties.”
Furthermore, as per Article 29.1 of the Code, to meet production and business needs or in case of unexpected eventualities like disasters, fires or dangerous epidemics, an employer may temporarily assign an employee to perform a job other than that stated in the labor contract provided that the assignment period, when accumulated for a year, does not exceed 60 working days. However, the employee’s written consent is required if this period is longer than 60 working days.
Furthermore, under the Code, cases of temporary assignment of employees to jobs other than those stated in labor contracts must be specified in the company’s internal working regulations.
In addition, at least three working days before temporarily assigning an employee to perform a new job, the employer must inform the employee thereof, clearly stating the duration of assignment. Besides, the job temporarily assigned to an employee must be suitable to his/her health and gender.
Worthy of note, according to Article 33 of the Code, if, for plausible reasons, the company has to arrange another workplace for an employee, the two parties will sign an annex to the existing labor contract or entering into a new one.
As in your case, your company may transfer you to the branch in Bac Ninh province to work for no more than 60 working days in a year. If the period of temporary transfer is longer, the company must obtain your written agreement.
Please be noted that you may refuse to take the temporarily assigned job if it is unsuitable to your health and gender.
Regarding salary payment upon job transfer, under Article 29.3 of the Code, the wage you will receive when being assigned to perform a new job will depend on such new job. However, if the wage for the new job is lower than your current wage, you will be further entitled to the current wage for 30 more days. Besides, the wage for the new job must be at least equal to 85 percent of the current wage and, at the same time, not be lower than the minimum wage.
If I agree to temporarily take the job in the company’s branch in Bac Ninh province but, for some reasons, I have to stay there for a period longer than scheduled and when I return, my position at the head office in Hanoi is no longer available, hence I decide to stop working until I can resume my previous position. In this case, what benefits will I be entitled to?
According to Article 29.4 of the Code, an employee, who refuses to perform a job other than that stated in the labor contract on a temporary basis for more than 60 working days in a year and therefore, has to stop working, will be entitled to a suspension pay. Specifically, the employee will receive:
(i) A full pay as stated in the labor contract, if the suspension is due to the fault of the employer;
(ii) No pay, if the suspension is due to the fault of the employee; or,
(iii) A pay agreed upon by the two parties, if the suspension is due to power- or water-related incidents and the employer is not at fault, or due to disasters, fires, dangerous epidemics, enemy sabotage, or due to relocation as requested by state authorities, or for economic reasons. In this case, the two parties will reach agreement on suspension pay, which, however, must not be lower than the minimum wage, if the suspension period is 14 working days or shorter; in case the suspension period is longer than 14 working days, the pay for the first 14 days of the suspension period must not be lower than the minimum wage.
If I don’t agree to move to the branch in Bac Ninh province, how can I unilaterally terminate my labor contract?
Under Article 35.1 of the Code, if disagreeing with your company’s assignment, you may unilaterally terminate your labor contract but you need to notify your intention to the company at least:
- Forty-five days in advance, if you’re working under an indefinite-term labor contract;
- Thirty days in advance, if you’re working under a labor contract with a term of between 12 months and 36 months; or,
- Three working days, if you’re working under a labor contract with a term of less than 12 months.
Pending the official termination of employment, you still have to work and submit to the management and direction of your company.
If my company keeps on assigning me to the job in Bac Ninh province without my consent, will it face any penalty?
As per Article 11.2 of Government Decree 12/2022/ND-CP of January 17, 2022, on sanctioning of administrative violations in the fields of labor, social insurance and Vietnamese guest workers, an individual employer will be fined from VND 3 million to VND 7 million if arranging employees to work at a location other than the agreed workplace in the labor contract. For enterprises committing the same violation, the fine will be doubled.
However, an employer will not be regarded as violating law if falling into the following cases: meeting with sudden difficulties such as disaster, fire or dangerous epidemic; or having to take measures to prevent and respond to an occupational accident or disease or an electricity or water-related incident or to meet production and business needs.
Besides, the employer must notify the employee of the new assignment at least three days in advance, clearly stating the assignment period, which, must not exceed 60 working days in a year. In case the assignment period is longer than 60 working days, the employer must obtain the employee’s written consent.- (VLLF)
