Laws of Vietnam

DECREE No. 96/1998/ND-CP OF NOVEMBER 17, 1998 ON THE REGIME OF JOB SEVERANCE OF PUBLIC EMPLOYEES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;

Pursuant to the Labor Code of June 23, 1994;

Pursuant to the Ordinance on Public Employees of February 26, 1998;

At the proposal of the Minister-Head of the Commission for Organization and Personnel of the Government,

DECREES:

Article 1.- Government officials and public servants referred to in this Decree are Vietnamese citizens on the payroll and receiving salary from the State budget. They include:

1. Persons specified in Items 2,3,4 and 5 of Article 1 of the Ordinance on Public Employees;

2. Government employees and public servants on special assignment to work at economic organizations, social and professional organizations which are already assigned payrolls by the competent authority;

3. Government officials and public servants working in branches and professions related to State secrets when ceasing to work shall comply with prescriptions in Article 18 of the Ordinance on Public Employees.

1. Government officials and public servants who stop working in the following cases shall enjoy the regime of job severance:

a/ Due to streamlining of organization or reduction of payroll by decision of the competent agency or organization;

b/ They ask to cease working and their request is accepted by the competent organization.

2. Government officials and public servants who cease working without meeting the conditions for enjoying the monthly pension as prescribed in Items 1 and 2 of Article 145 of the Labor Code shall receive a lump-sum one-month allowance and other interests stipulated in Articles 3 and 4 of this Decree.

Article 3.- Government officials and public servants who stop working due to streamlining of organization or reduction of payroll as decided by the competent agency or organization shall enjoy the following job severance regime:

1. They shall receive a sum to seek a new job equal to three months’ salary and allowances (if any). If after that they cannot find a new job, they shall receive one month of their current salary and allowances (if any) for each working year, the lowest rate must equal two months of their current salary and allowances (if any);

2. They shall be assisted by the local adminis-tration, allowed to register for household membership and created conditions to carry on their livelihood when they return to their lawful residence places;

3. They shall enjoy the regime of social allowances, social insurance and other regimes as provided for by law.

Article 4.- Government officials and public servants who wish to cease work as prescribed in Item 2, Article 2 of this Decree with the consent of the competent agency or organization shall enjoy the regime of job severance and receive half of their current monthly salary and allowances (if any) and other interests stipulated in Items 2 and 3 of Article 3 of this Decree.

Article 5.- The work time used to decide the regime of job severance for government officials and public servants stipulated in Item 1, Article 2 of this Decree shall be determined as follows:

1. It is the total work time after the government official or public servant receives his recruitment decision;

2. If the government official or public servant has not received his/her job severance allowance for the period he/she works in State enterprises or the armed forces this period shall be counted as work time;

3. Besides, the following time shall also be counted as work time of government officials and public servants:

a/ The time when the government official or public servant works under provisional contracts with the agency or organization according to the payroll assignment and during which he/she pays social insurance and is subsequently officially recruited by the agency or organization;

b/ The time when the agency employing the government official or public servant sends them for training or fostering;

c/ The time when the government official or public servant is on leave as stipulated in Articles 73, 74, 75 and 78 of the Labor Code;

d/ The time when the government official or public servant is off duty to receive medical treatment with written certification by the doctor and receives social insurance allowance;

e/ The time when the government official or public servant is on maternity leave as stipulated in Item 1, Article 117 and Item 1, Article 144 of the Labor Code;

f/ The time when the government official or public servant is subjected to discipline or examined for penal liabilities which the competent authority concludes to be a wrong or unjust verdict as stipulated in Article 45 of the Ordinance on Public Employees;

g/ The time when the government official or public servant is subjected to provisional suspension of work as prescribed in Article 41 of the Ordinance on Public Employees.

Article 6.- Expenditures for the job severance regime are stipulated as follows:

1. If the job severance is due to the streamlining of organization or reduction of payroll by decision of the competent agency or organization, expenditures shall be paid by the State budget;

2. For other cases of job severance, they shall be paid by the ministries, branches and localities from the administrative and non-business budget assigned by the Government;

3. If the government official or public servant has worked for some time at a State enterprise, the enterprise shall have to pay the job severance allowance for the period he/she works at the enterprise. The payment shall be transferred through the notice of the unit where the government official or public servant is working so that the former unit shall pay the allowance. In case the former unit has been dissolved or it is really meeting financial difficulties, payment shall be made by the State budget.

1. Government officials or public servants who are disciplined by forcible cessation of work shall not be entitled to the job severance regime and other interests.

2. Government officials or public servants who forsake their work on their own initiative shall, besides being disciplined through forcible cessation of work, not enjoy the job severance regime and other interests and moreover shall have to pay compensation to the agency or organization employing them for the expenditures in training and fostering (if any) on the following principles:

a/ Compensation shall be made only for the courses organized by the agency or organization or if the agency or organization sends them for training and fostering in the country and abroad for three months or more;

b/ When considering the level of compensation, the seniority and merits of the government official or public servant must be taken into account in order to decide whether he/she shall have to make partial or full compensation;

c/ The agency or organization must set up a Council to consider compensation of training and fostering expenditures for government officials and public servants and propose to the agency or organization with managerial competence over government officials and public servants for decision.

3. The Council to consider compensation shall comprise:

- The head of the agency or organization or his/her deputy who is delegated by him/her to head the Council;

- The representative of the leadership of the trade union organization of the same level;

- The person in charge of training and fostering government officials and public servants of the agency or organization;

- The person in charge of the finance-accountancy section of the agency or organization;

- The person in charge of the unit directly employing the person who has to pay the compensation.

4. The Council shall meet to consider the compen-sation in the following order: The Chairman of the Council announces the composition of the participants, appoints the secretary; the representative of the training and fostering section reports on the regime and level of compensation; the Council listens to the explanations of the person who has to make the compensation; The Council discusses and casts secret votes on the level of compensation. The result shall be recorded in writing for the competent agency or organization to decide. The Council shall dissolve by itself after completing its task.

5. In case the person who has to pay compensation for the training and fostering cost does not strictly execute the decision, the competent agency or organization has the right to ask the Court to settle.

Article 8.- While the government official or public servant is being examined for discipline or for penal liabilities, the agency or organization which is managing or employing him/her must not allow him/her to cease working.

Article 9.- Agencies and organizations must not allow government officials or public servants to cease working as stipulated in Item 1 Article 2 of this Decree in the following cases:

1. The government official or public servant is on annual leave or is taking a leave on personal affairs and other cases of absence permitted by the head of the agency or organization;

2. The government official or public servant is sick or meets with accident, is suffering from occupational disease or is receiving treatment at the hospital by decision of the doctor;

3. Female government officials and public servants who are pregnant, on pregnancy and maternity leave or nursing children under 12 months old, unless they apply for cessation of work.

Article 10.- Organizations and individuals that fail to implement or incorrectly implement this Decree shall, depending on the character and extent of the violation, be disciplined or examined for penal liabilities as prescribed by law. If they cause material losses, they shall have to make compensation.

Article 11.- When ceasing to work, if the government official or public servant deems that their treatment is not yet appropriate, he/she may appeal to the competent agency or organization as prescribed by the legislation on complaints and denunciations.

Upon receiving the complaint of government officials or public servants, the agencies or organizations shall have to reply to the complainants and within the time-limit prescribed by law.

Government official and public servants disciplined through forcible cessation of work may appeal to the competent agency or organization or start an administrative case at the Court as prescribed by law.

1. This Decree takes effect 15 days after its signing.

2. This Decree replaces the regulations on job severance in the following documents:

- Decree No. 24/CP of November 8, 1962 of the Government Council promulgating the Regulations on recruitment and job severance of State workers and Government employees;

- Decree No. 109/HDBT of April 12, 1991 of the Council of Ministers on streamlining the payroll organization of the administrative and non business sector;

- Decision No. 111/HDBT of April 12, 1991 of the Council of Ministers on a number of policies in the arrangement of the payrolls;

- Decision No. 76/HDBT of March 9, 1992 of the Council of Ministers on the policy and measures to step up the streamlining of the payrolls in the administrative and non-business sector.

Article 13.- The Minister-Chairman of the Government Commission for Organization and Personnel shall have to guide the implementation of this Decree.

Article 14.- The Ministers, the Heads of ministerial-level agencies, the Heads of the agencies attached to the Government, the Presidents of the People’s Committee of the provinces and cities directly under the Central Government and the Heads of the related agencies and organizations shall have to implement this Decree.

On behalf of the Government

Prime Minister