Reference Check in Vietnam and Termination of Employment. What Are 4 Recommendations?

  The process of conducting a reference check in Vietnam plays a pivotal role in employment process when more foreign companies enter to set up business in Vietnam and apply such from their business practice.

As per the Vietnam Labor Code, there is legal ground to support this reference check and essentially this procedure helps ensure the accuracy of employee information and protects employers from fraudulent claims.

The reference check in Vietnam is not only a standard HR practice but also a legal safeguard, aligning with the obligations outlined in the Labor Code.

The Role of Reference Check in Vietnam

When a department manager consents to a reference check, the HR Department is authorized to verify the employee’s history with previous employers. The outcome of this process is crucial in determining the legitimacy of the information provided by the candidate during the hiring process. If discrepancies are identified, the employee’s failure to disclose truthful information could have significant implications.

Under the Vietnam Labor Code, such inconsistencies may justify unilateral termination of the employment contract. Employers are empowered to take action, provided that they adhere to the legal framework for labor relations in Vietnam.

Legal Basis Governing Reference Checks

The legal basis for conducting a reference check in Vietnam and addressing inconsistencies is clearly stated in the Labor Code. Accordingly:

“Employees fail to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Code in a manner that affects the recruitment.”

Clause 2 of Article 16 further outlines the obligations of employees:

“Employees have to provide honest information to the employer about their full name, date of birth, gender, place of residence, educational level, vocational skills, confirmation of health status and other issues directly related to the conclusion of the labor contract as required by the employer.”

This provision underscores the necessity of accuracy and honesty in employment agreements. The reference check ensures that all details provided by the employee align with the employer’s requirements and expectations.

Consequences of Discrepancies in Reference Checks

When discrepancies arise during a reference check in Vietnam, employers have the legal right to terminate employment contracts under the stipulated procedures. Labor Code states:

“When unilaterally terminating the employment contract in any of the cases specified in points a, b, c, đ and g clause 1 of this Article, the employer shall inform the employee in advance:

• At least 45 days in case of an indefinite-term employment contract;
• At least 30 days in case of an employment contract with a fixed term of 12–36 months;
• At least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases stipulated in point b clause 1 of this Article.”

The importance of adhering to these timelines cannot be overstated. Employers conducting a reference check in Vietnam must follow the prescribed notice periods to ensure compliance with labor laws and avoid potential disputes.

Limitations on Terminating Employment Contracts

While the Labor Code grants employers significant authority to address dishonest behavior, certain limitations apply. Labor Code specifies situations where employers are prohibited from unilaterally terminating labor contracts. These include:

• Pregnant female employees
• Employees on maternity leave
• Employees raising children under 12 months old

This protective clause underscores the need for caution and adherence to legal guidelines when addressing issues identified during a reference check in Vietnam. Employers must ensure that their actions align with these regulations, even in cases of dishonesty.

Practical Recommendations for Employers

Employers should consider the following steps to navigate reference checks and termination procedures effectively:

1. Thorough Documentation
   Maintain detailed records of the reference check process, including communications with previous employers and discrepancies identified.
2. Legal Consultation
   Consult with a legal expert in Vietnam to ensure compliance with the Vietnam Labor Code and to understand the implications of specific clauses.
3. Transparent Communication
   Clearly communicate any concerns or findings with the employee, providing them an opportunity to clarify or rectify discrepancies.
4. Follow Proper Procedures
   Adhere to the prescribed notice periods and ensure all termination actions are in line with the labor laws of Vietnam.

The process of conducting a reference check in Vietnam is a critical component of maintaining integrity in employment practices. By adhering to the legal provisions outlined in the Labor Code, employers can safeguard their interests while respecting the rights of employees. Properly conducted, reference checks ensure transparency and foster trust in the workplace, laying the foundation for successful employment relationships.

About ANT Lawyers, a Law Firm in Vietnam

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi,  and Danang, and will help customers in doing business in Vietnam.

Source: https://antlawyers.vn/update/reference-check-in-vietnam-legal-grounds.html