Công văn 2509/LĐTBXH-LĐTL về trợ cấp thôi việc đối với người lao động khi chấm dứt hợp đồng lao động do Bộ Lao động - Thương binh và Xã hội ban hành

Replying the Official Dispatch No.79/CV-HLGDHN dated 11/07/2011 of Hanoi Education Materials John Stock Company on the mode resolution to laborers upon termination of labor contract, the Ministry of Labour - Invalids and Social Affairs has the following opinions:

1. According to clause 1, Article 14 of Decree No.44/2003/ND-CP dated 09/5/2003 of the Government detailing and guiding the implementation of a number of Articles of the Labor Code on labor contracts upon the termination of labor contracts, the employers are responsible for paying terminal allowance for the employees who worked from enough 12 months or more in the case of termination of labor contract provided for in Article 36, Article 37, points a, c, d and đ, clause 1, Article 38, clause 1, Article 41, point c, clause 1, Article 85 of the Labour Code.

The case Ms.Truong Thi Thanh worked for the Hanoi Education Materials John Stock Company from 10/2008 to 07/2011 (total time worked at the company is 33 months), Ms.Thanh terminated labor contracts in compliance with the law regulations, the Hanoi Education Materials John Stock Company is responsible for resolving the regime of terminal allowance for Ms.Thanh for the period of time that she worked at the company.

2. According to provisions in clause 1, Article 41 of Decree No.127/2008/ND-CP dated 12/12/2008 of the Government detailing and guiding the implementation of a number of Articles of the Law on Social Insurance for unemployment insurance, the time the employee pays unemployment insurance as prescribed in clause 1, Article 102 of the Social Insurance Law is not included to enjoy terminal allowance or unemployment allowance. Thus, for the period from 01/2009 to 07/2011 Ms.Thanh is paid unemployment insurance by the company, and then this period shall not be included to enjoy terminal allowance.

3. According to provisions in Decree No.44/2003/ND-CP dated 09/5/2003 and Decree No.127/2008/ND-CP dated 12/12/2008 of the Government and Circular No.17/2009/TT- BLDTBXH dated 26/05/2009 of the Ministry of Labour - Invalids and Social Affairs, the working time that Ms.Thanh is calculated for enjoying terminal allowance is 03 months (from 10/2008 to 12/2008) rounded into 1/2 working year. Therefore, the Company shall pay terminal allowance to her equal 1/4 the average salary of six months preceding the termination of labor contract.

Above is the opinion of the Ministry of Labor - Invalids and Social Affairs, replying the company to know and implement.

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