Tiếng ViệtIn today’s labor environment, many employees face unlawful dismissal, resulting in loss of income and lawful entitlements. Conversely, employers may also face legal risks and disputes if disciplinary actions are taken in violation of labor regulations.
To minimize risks and safeguard the rights and obligations of both parties, it is essential to have a clear understanding of the legal provisions governing dismissal and labor discipline.
In this article, LexConsult & Partners provides a comprehensive analysis of unlawful dismissal, helping employees understand their protected rights and guiding employers on how to handle disciplinary actions properly and in full compliance with Vietnamese labor law.
1. Definition and Legal Basis of Unlawful Dismissal
1.1. What Is Unlawful Dismissal? Key Indicators and Practical Examples
Dismissal is one of the disciplinary measures provided under the Labor Code 2019 and is considered the most severe form of labor discipline that an employer may impose on an employee for serious misconduct.
Examples:
– Theft, embezzlement, causing serious property damage;
– sexual harassment at the workplace;
– or other serious violations resulting in significant harm to the enterprise.
A dismissal is considered lawful only when the following conditions are met:
– There is clear and substantiated evidence of the employee’s misconduct;
– The employer strictly complies with the legal procedures for disciplinary action, including written notice, a formal disciplinary meeting, the presence of a labor representative (if applicable), preparation of minutes, and proper recordkeeping;
– The employer does not commit any prohibited acts during the disciplinary process, such as dismissing pregnant employees, employees on maternity leave, or those on sick leave or work-related injury leave.
Accordingly, if the employer fails to provide sufficient grounds or does not follow the prescribed disciplinary procedures, the dismissal decision shall be deemed unlawful under Vietnamese labor law.
1.2. Legal Grounds Governing Unlawful Dismissal under the 2019 Labor Code
Key legal provisions currently regulating unlawful dismissal include:
– Article 125 – Labor Code 2019: Specifies cases in which the employer is entitled to apply disciplinary dismissal.
– Article 122 – Labor Code 2019: Provides principles, order, and procedures for handling labor discipline.
– Article 127 – Labor Code 2019: Lists prohibited acts in the disciplinary process.
– Article 70 – Decree No. 145/2020/NĐ-CP (as amended by Decrees No. 129/2025/NĐ-CP, No. 10/2024/NĐ-CP, and No. 35/2022/NĐ-CP): Details the procedures and requirements for implementing labor discipline.
2. Employee Rights in Cases of Unlawful Dismissal – Compensation and Legal Protection
2.1. Employee Entitlements When Unlawfully Dismissed
Unlawful dismissal is considered a specific form of illegal termination of an employment contract. In such cases, the employee is entitled to benefits under Article 41 of the 2019 Labor Code, which aim to restore their legitimate rights and ensure compensation for the employer’s violation.
Employee Rights in Cases of Unlawful Dismissal
| Entitlement | Detailed Description | Legal Basis |
|---|---|---|
| Reinstatement | The employee has the right to be reinstated to their previous position under the signed labor contract, thereby protecting their lawful job and income. | Article 41 – Labor Code 2019 |
| Payment of Wages and Insurance | Entitled to full salary and social, health, and unemployment insurance contributions for the period of non-work, plus at least two months’ salary as compensation. | Article 41 – Labor Code 2019 |
| Severance Allowance | If the employee chooses not to return to work, they are entitled to severance pay in accordance with Article 46 of the 2019 Labor Code. | Article 46 – Labor Code 2019 |
| Additional Compensation by Agreement | If the employer does not wish to reinstate the employee, both parties may agree on an additional compensation amount of at least two months’ salary to terminate the contract amicably. | Contractual Agreement |
| Moral or Reputational Damages | The employee may claim moral damages if the unlawful dismissal causes loss of honor, reputation, or emotional distress. | General Civil Liability Principles |
2.2. How Compensation for Unlawful Dismissal Is Calculated
Under Vietnamese labor law, an employee unlawfully dismissed is entitled to the following compensation and benefits:
– Payment of wages and insurance contributions for the period not worked;
– At least two months’ salary as mandatory compensation;
– Severance allowance, if applicable;
– Additional agreed compensation, depending on mutual negotiation;
– Moral or emotional damages, if proven.
3. How to Handle Unlawful Dismissal – Step-by-Step Guide to Protect Your Rights
When facing an unlawful dismissal, employees should take proactive steps to protect their legal rights and avoid missing the opportunity to file a claim.
| Step | Action Required | Purpose / Benefit | Legal Basis |
|---|---|---|---|
| Step 1. Collect and Preserve Evidence | – Keep the labor contract, dismissal decision, and minutes of the disciplinary meeting. – Retain emails, payslips, and social, health, and unemployment insurance documents. – If the disciplinary process was improper (no prior notice, no labor representative, no minutes), preserve proof of these violations. |
To demonstrate the unlawful nature of the dismissal and provide a solid basis for complaint or litigation. | Articles 122, 125 – Labor Code 2019 |
| Step 2. File a Complaint and Seek Support from the Trade Union | – Submit a complaint directly to the employer. – If unresolved, escalate to the Labor Inspectorate or the Department of Labor, Invalids and Social Affairs (DOLISA). – Request assistance from the enterprise’s trade union. |
To resolve the matter internally before litigation, reduce costs, and gain protection from employee representative bodies. | Article 15 – Decree No. 24/2018/NĐ-CP; Article 20 – Law on Trade Unions 2024 |
| Step 3. Negotiate or Mediate with the Employer | – Actively negotiate compensation, unpaid wages, or insurance obligations. – Record the outcome in writing. – Labor mediation helps save time, cost, and maintain employment relations. |
To increase the chance of a fair compensation agreement and avoid prolonged litigation. | Article 188(1) – Labor Code 2019 |
| Step 4. File a Lawsuit with the People’s Court | – Prepare documents: petition, labor contract, dismissal decision, and evidence of violations. – Submit the case to the District People’s Court where the enterprise is headquartered. – Statute of limitations: 1 year from the date the employee discovers their rights were violated. |
To request the court to annul the unlawful dismissal decision and order reinstatement, compensation, and social insurance payment. | Article 190 – Labor Code 2019; Civil Procedure Code 2015 |
| Step 5. Consult and Appoint a Labor Lawyer | – A labor lawyer assists in drafting petitions, organizing evidence, participating in mediation, and representing the client in court. – The lawyer represents employees in negotiation, protects their rights, and proposes fair compensation or reinstatement solutions. |
Ensures lawful documentation, strong legal strategy, and maximizes the chance of winning and securing compensation. | LexConsult & Partners – Legal Services in Labor Dispute Resolution |
4. Legal Procedures for Resolving Unlawful Dismissal Disputes
Under the 2019 Labor Code and the 2015 Civil Procedure Code, disputes concerning unlawful dismissal are classified as individual labor disputes and are handled through the following steps:
| Step | Main Content | Legal Basis |
|---|---|---|
| Step 1 – Request Assistance from a Labor Mediator | The employee may submit a request to a labor conciliator for support. Although not mandatory, this procedure helps save time and costs. | Article 188(1) – Labor Code 2019 |
| Step 2 – File a Lawsuit with the People’s Court | The employee may file a lawsuit directly if unsatisfied with the mediation result or chooses to bypass mediation. Required documents: petition, labor contract, dismissal decision, and supporting evidence. Statute of limitations: 1 year from the date of infringement. |
Article 190 – Labor Code 2019 |
| Step 3 – Trial and Appeal | First Instance: The court accepts, reviews, and issues a judgment or decision. Appeal: Either party may appeal the first-instance judgment if they disagree with it. |
Civil Procedure Code 2015 |
| Step 4 – Enforcement of Judgment | Once the judgment becomes effective, the employer must comply (reinstatement, back pay, compensation, and social insurance payment). If non-compliant, the employee may request the Civil Judgment Enforcement Agency to enforce the ruling. |
Civil Procedure Code 2015 |
Resolving unlawful dismissal disputes requires thorough preparation of documents, evidence, and legal grounds. Employees are strongly advised to consult with a labor lawyer to ensure that the litigation process is conducted lawfully, efficiently, and effectively.
5. Key Notes and Legal Risks in Unlawful Dismissal Disputes
Unlawful dismissal is among the most common types of individual labor disputes in Vietnam, directly affecting the income, reputation, and employment relationship of both parties. Whether you are an employee or an employer, understanding the key legal points and potential risks helps minimize damages and manage disputes more effectively.
5.1. Legal Notes for Employees in Cases of Unlawful Dismissal
Employees who are unlawfully dismissed are often in a weaker position and risk losing their lawful rights if they fail to act promptly. The following points are particularly important:
– Keep all relevant documents and evidence: Employees should retain their employment contract, dismissal decision, disciplinary meeting minutes, payslips, and social insurance records. These documents are essential evidence when filing a complaint or lawsuit.
– Observe the statute of limitations: Under Article 190 of the 2019 Labor Code, employees have one year from the date they discover their rights were violated to file a lawsuit. Once this period expires, the court will not accept the case.
– Choose an appropriate dispute resolution method: Depending on the circumstances, employees may:
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File a complaint with the employer or the Department of Labor, Invalids and Social Affairs (DOLISA);
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Seek assistance from the enterprise’s trade union;
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Or file a lawsuit directly with the People’s Court.
Negotiation or mediation before filing a lawsuit can save time and costs while improving the likelihood of reaching a fair settlement.
– Decide between reinstatement or compensation: If the court rules that the dismissal was unlawful, the employee has the right to either:
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Return to work, receiving back pay and full insurance contributions; or
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Decline reinstatement and receive at least two months’ salary as compensation along with other benefits.
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– Consult a labor lawyer for advice and representation: Labor dismissal disputes are complex and require legal knowledge and evidentiary skills. A labor lawyer can prepare the claim, negotiate with the employer, and represent the employee to ensure maximum protection of lawful rights.
LexConsult & Partners offers comprehensive advisory and representation services to help employees restore their rights quickly, accurately, and in full compliance with the law.
5.2. Legal Notes for Employers in Disciplinary Actions and Dismissal
Beyond supporting employees, LexConsult & Partners is also a trusted legal partner for businesses, assisting them in preventing and managing unlawful dismissal disputes. Employers should note the following:
– Comply strictly with disciplinary procedures: Under Articles 122 and 125 of the 2019 Labor Code, employers may only dismiss an employee if:
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There is clear and sufficient evidence of the violation;
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The disciplinary meeting follows due process (proper notice, trade union participation, written minutes);
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The dismissal decision is issued in writing and delivered to the employee.
Any procedural error can render the dismissal invalid.
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– Do not dismiss legally protected employees: Employers are strictly prohibited from dismissing:
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Pregnant employees, those on maternity leave, or those nursing a child under 12 months old;
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Employees on sick leave or recovering from workplace injuries;
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Employees under temporary detention or custody.
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– Maintain comprehensive documentation and evidence: Keep all disciplinary records, meeting minutes, notices, and proof of violations. This documentation is critical to proving the legality of the dismissal decision if a dispute arises.
– Prevent unlawful dismissal disputes: To minimize risks, employers should:
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Train HR staff on labor discipline regulations;
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Regularly review internal labor rules, employment contracts, and disciplinary policies;
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Consult a labor lawyer before issuing any dismissal decision.
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Therefore, businesses should handle labor discipline in strict accordance with the law, regularly review internal labor regulations, train HR personnel, and consult labor lawyers before issuing any dismissal decision. Doing so helps prevent unlawful dismissal disputes and protect the company’s reputation and credibility.
Understanding and complying with the legal provisions on dismissal not only safeguards the lawful rights and interests of both parties but also contributes to building transparent, stable, and sustainable labor relations.
6. Labor Lawyer Services by LexConsult & Partners for Unlawful Dismissal Disputes
6.1. For Employees
When facing unlawful dismissal, having a labor lawyer by your side helps you:
– Assess the legality of the dismissal decision;
– Draft complaints, petitions, and compensation claims;
– Represent you in negotiations and mediation with the employer;
– Participate in litigation to ensure full protection of your lawful rights.
LexConsult & Partners provides a comprehensive advisory and representation package, helping employees recover their rights swiftly, effectively, and in accordance with Vietnamese labor law.
6.2. For Employers
LexConsult & Partners also serves as a reliable legal partner for employers, offering specialized legal solutions to prevent and manage unlawful dismissal disputes, including:
– Advising on lawful disciplinary procedures to minimize the risk of an “unlawful dismissal” ruling;
– Reviewing and updating internal labor regulations, disciplinary policies, and HR documentation;
– Training HR and management teams on legal disciplinary processes;
– Representing employers in mediation or litigation proceedings;
– Providing legal consultancy on dismissal and disciplinary issues to help build lawful and transparent HR practices.
With expert consultation from LexConsult & Partners, businesses can maintain a compliant and transparent workplace, reduce legal risks, and reinforce a culture of compliance.
7. FAQ – Common Questions on Unlawful Dismissal (Answered by Lawyers)
Can an employee return to work after being unlawfully dismissed?
→ Yes. Under the 2019 Labor Code, the court may order the employer to reinstate the employee, restore their position, and pay full wages and insurance contributions.
What if the employee does not wish to return to work?
→ The employee may terminate the contract and receive severance pay, at least two months’ salary, and other lawful benefits.
Is compensation available for unlawful dismissal?
→ Yes. The employer must pay at least two months’ salary, along with back wages, insurance contributions, and potentially moral damages if proven.
What is the time limit for filing a claim?
→ The employee has one year from the date of discovering the violation to file a lawsuit. After this period, the right to sue expires.
Is hiring a lawyer mandatory?
→ No, but having a labor lawyer greatly increases the chances of success, ensures proper documentation, and facilitates effective negotiation.
Where can an employee file a complaint before going to court?
→ The employee may file a complaint directly with the employer, the enterprise’s trade union, or the Department of Labor, Invalids and Social Affairs (DOLISA).
Unlawful dismissal not only causes financial and emotional harm to employees but also poses significant legal and reputational risks for employers. Both parties should understand the law, retain proper documentation, and seek timely legal advice to avoid or resolve disputes effectively.
Employees should know how to file complaints, negotiate, or initiate lawsuits to protect their rights. Employers should follow proper procedures, keep accurate records, and consult a labor lawyer before making any dismissal decisions.
LexConsult & Partners provides comprehensive labor law advisory services, supporting employees in complaints and lawsuits, and assisting businesses in lawful disciplinary processes, internal compliance, and labor dispute resolution in accordance with Vietnamese law.
📞 Hotline: 0938 657 775
📧 Email: info@lexconsult.com.vn
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– [Labor Lawyer Services in Vietnam | Consultation & Dispute Resolution]
– [Compensation for Breach of Employment Contract: Latest Legal Regulations in Vietnam]
– [Unlawful Termination of Employment Contracts: Rights and Legal Remedies]
