In order to improve the quality of human resources, many businesses have organized vocational training and labor training. When employees are trained by the company, they must sign a commitment to work for the company for a certain period of time. However, if the employee fails to meet his / her commitment to working time for the employee, how will the training cost be calculated, does the employee have to pay training costs to the employer? is not ? The lawyer will answer this question as follows:
If the employer organizes vocational training for workers for a fee, the enterprise must register its vocational training business. If the enterprise organizes vocational training, retraining of professional skills for employees who are working at the enterprise or engaged in recruiting people for training and vocational training with the enterprise’s expense or If the partner of the enterprise pays, the enterprise and the employee must sign a vocational training contract.
Thus, when the cost is paid by the enterprise for training, the employee and the employer must enter into a labor contract. This labor contract must comply with the provisions of Article 62 Labor Code 2012. Accordingly:
+ The two sides must sign a vocational training contract in case the employee is trained, improved vocational skills and skills, retrained at home or abroad from the employer’s budget, including both partner-sponsored funding for employers.
+ Vocational training contract must be made in 02 copies, each party keeps 01 copy.
+ Vocational training contract must contain the following main contents: Vocational training; Training location, training duration; Training costs; Time limit for employees to commit to working for the employer after being trained; Responsibility to refund training costs; e) Responsibilities of the employer.
+ Training expenses include expenses with valid vouchers on expenses paid to teachers, learning materials, schools, classes, machines, equipment, practical materials, and other expenses to support people. and salaries, social insurance and medical insurance premiums for learners during school time. In case an employee is sent to a foreign country for training, the training cost also includes travel and living expenses during his time abroad.
So when the employee unilaterally terminates the vocational training contract, what responsibilities arise?
Case 1: The employee unilaterally terminates the labor contract legally.
According to the provisions of Article 41 of the 2012 Labor Code, which stipulates unilaterally terminating the labor contract illegally: “Unilateral termination of an illegal labor contract means cases of labor contract termination not in accordance with the provisions of 37, 38 and 39 of this Code ”.
Based on the provisions of Article 37 Labor Code 2012, employees who are working under definite-term labor contracts and seasonal labor contracts or under a certain job with a term of less than 12 months (hereinafter collectively referred to as seasonal labor contracts) have the right to unilaterally terminate the contract ahead of time in the following cases:
(first). Not be arranged in accordance with the job, the working place or not guaranteed the working conditions agreed in the labor contract.
(2). Not being paid in full or on time as agreed in the labor contract.
(3). Being beaten or abusive by the employer; acts that affect the health, dignity, honor or forced labor; being sexually harassed at work.
(4). Individuals or families in difficult circumstances cannot continue to perform labor contracts, such as:
– Having to take time off work to take care of his / her spouse, natural father, mother-in-law, mother-in-law or father-in-law, natural children, adopted children who get sick or have accidents.
– When going abroad to live or work.
– The family is facing difficulties due to natural disasters, fires, enemy sabotage, epidemics or relocation but the employee has sought all measures but cannot continue to perform the labor contract.
(5). Elected to work full-time in elected bodies or appointed to positions in the state apparatus.
(6). If the female employee is pregnant, if she has the confirmation of the competent medical facility about her continued working, it will adversely affect the fetus.
(7). The employee suffers from sickness or accident for 90 days of continuous treatment for employees working under definite-term labor contracts and one-fourth of the contractual term for employees under seasonal labor contracts. but the ability to work has not been restored.
The employee is obliged to notify the enterprise in accordance with the following time limit:
– The case specified at Point 1; 2; 3 and 7 above, at least 03 working days notice
– Cases prescribed at Points 4 and 5 at least 30 days in case of definite term labor contract, at least 03 working days in case of seasonal labor contract.
– For employees who are working under indefinite-term labor contracts, they have the right to unilaterally terminate the labor contract without having to fall into the above-mentioned cases but must notify the enterprise at least 45 days in advance.
– For pregnant female employees, if certified by the competent medical examination and treatment facility, the certificate of continued working will adversely affect the fetus and have the right to unilaterally terminate the labor contract. The time limit for female employees to notify the employer in advance depends on the time limit designated by the competent medical examination and treatment facility.
Case 2: The employee unilaterally terminates the labor contract contrary to the provisions of law.
In this case, the employee will be subject to the terms and conditions that the two parties have concluded in the labor contract. Therefore, when concluding a labor contract, the employer should note:
– When signing a training contract, the enterprise should clearly specify the costs of professional training and fostering for employees to be more convenient if it is forced to reimburse employees for training expenses.
In addition, when conducting training activities for subjects who are not their employees, enterprises should pay attention to the following issues:
These subjects must be from the age of 14 years old and have good health suitable to the job requirements, except for a number of occupations prescribed by the Ministry of Labor, War Invalids and Social Affairs.
During the period of training, if these subjects directly or participate in labor to produce qualified products, the enterprise shall pay wages at the level agreed upon by the two parties. Because it is not an employee of the enterprise (not working under a labor contract), the salary paid by the enterprise does not have to meet the regional minimum wage requirements.
When terminating the labor contract, how is the employee responsible for reimbursing training expenses?
The 2012 Labor Code stipulates that an employee who unilaterally terminates the labor contract illegally in Clause 3, Article 43, must return the training cost to the employer in accordance with Article 62 of this Code. So, does the Labor Code have no regulation on the termination of the lawful labor contract?
Clause 2, Article 61 of the Law on Vocational Education 2014 stipulates that graduates of training courses will be granted scholarships by employers, training expenses must be worked for employers according to the committed time limit in training contract; In case of failure to comply with commitments, scholarships and training expenses must be reimbursed. Therefore, the issue of responsibility for reimbursing the employee’s training costs arises only when the employee terminates the labor contract (labor contract) before the expiry of the working time committed in the training contract.
Therefore, the basis for enterprises to request employees to pay compensation for training costs is a commitment that the parties have agreed on cases of compensation for training costs in the training contract signed by the two parties.
+ If in the training contract the two parties agree to comply with the Law on Vocational Education 2014 (ie, in all cases of termination of labor contract, compensation for training costs will be required), the employee will have to pay training expenses. according to the commitment despite the termination of the lawful labor contract;
+ If the training contract of the two parties agrees to comply with the provisions of the Labor Code, if the employee unilaterally terminates the labor contract ahead of time in accordance with the law, no compensation is required.
In view of MSc. Nguyen Thi Hai Chau (Journal of People’s Courts):
“In fact, there are many cases where the two sides do not agree to comply with any legal regulations, resulting in different views when resolving disputes; From the author’s point of view, an enterprise cannot force employees to be “committed” to the “inappropriate” content of the Labor Code, when the nature of “apprenticeship” is a form of labor of employees. Services for enterprises and labor force are the highest legal documents in the field of adjustment of labor relations, that is, even if the two parties agree to comply with the Law on Vocational Education 2014 or two. If the party does not agree to comply with any law, employees will not have to pay training expenses if unilaterally terminate the labor contract in accordance with the law. Therefore, to avoid the occurrence of disputes in labor relations, enterprises and employees, the terms and conditions of the training contract should be clearly agreed.
Lawyers fully agree with the above opinion, enterprises to avoid damage due to the expenses paid for training large human resources that employees do not contribute, contribute to the business, causing business losses. If the injury is harmful, the enterprise should clearly agree with the employee about the terms when signing a training contract.
Above is the advice of the Lawyer on the responsibility of workers’ compensation for the cost of training when unilaterally terminating the contract. Businesses please call us on the hotline 0982.466. 166 or email tinhanhphapluat.com when you need advice and support. Very happy to cooperate!
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