TERMINATION OF A LABOR CONTRACT WITH A DOMESTIC HELPER 2025
Topic 16:
TERMINATION OF A LABOR CONTRACT WITH A DOMESTIC HELPER
Senior Lecturer, MSc. Đoàn Công Yên
SUMMARY OF THE CASE AND COURT DECISION
[Judgment No. 02/2021/LĐ-PT dated February 1, 2021, of the People’s Court of Bà Rịa – Vũng Tàu Province regarding a dispute over payment of labor wages.]
Summary of the Case:
According to the lawsuit filed on June 26, 2020, the supplemental lawsuit filed on August 11, 2020, the plaintiff’s self-declarations, and the litigation process, the plaintiff, Mr. Tôn Q. Chung, stated the following:
In October 2017, Mr. Tôn Q. Chung worked as a construction assistant for Mr. Đầu K. Bản to repair an eatery, totaling 6 workdays. In September 2018, he assisted Mr. Bản in demolishing and rebuilding a fence for Viên Thành Pagoda in T neighborhood, Ph ward, Ph town, totaling 16 workdays.
Additionally, in 2018, Mr. Q. Chung performed various tasks for Mr. Bản’s family, including: assisting in building a tomb for Mr. Bản’s child; assisting in constructing a house for Mr. Bản’s son; helping Mr. Bản build a goat pen, totaling 18 workdays (pouring concrete beams and slabs, dismantling the old pen, constructing floors for two new pens, replacing rafters and roofing with new corrugated iron for two pens, and building a fence to enclose a goat grazing area spanning over 1 hectare);
working on Mr. Bản’s farm during the 2018 rainy season (spraying herbicides, applying pesticides to deter birds like cuckoos from eating sprouting seeds, spraying insecticides and growth enhancers, weeding, fertilizing, pruning corn and green beans, harvesting corn, installing an automatic irrigation system, and building fences around two farm plots); and assisting Mr. Bản in cutting bamboo to make frames for duck and rabbit pens and enclosing them with wire mesh.
Mr. Q. Chung has now filed a lawsuit demanding that Mr. Bản pay him 24,630,000 VND in wages.
Court Decision:
The court partially upheld Mr. Tôn Q. Chung’s claim in the dispute over “payment of labor wages” with Mr. Đầu K. Bản. Mr. Đầu K. Bản was ordered to pay Mr. Tôn Q. Chung 10,260,000 VND (ten million two hundred sixty thousand Vietnamese dong) in labor wages.
COMMENTARY
I. Introduction
Domestic help is an increasingly common social relationship within the labor market. Through the 2019 Labor Code (from Article 161 to Article 165), the State has brought this relationship under the regulation of labor law, with specific provisions that distinguish it from other individual labor relationships.
In practice, however, there exists another type of domestic help relationship that is established and governed by civil law. This duality has led to varying perspectives on identifying labor relationships involving domestic helpers. Within this topic, the author analyzes two fundamental issues: (i) the characteristics of the domestic help relationship under labor law; and (ii) the wages of employees engaged in domestic help.
II. Legal Issues
- Characteristics of the Domestic Help Relationship Under Labor Law
Domestic help labor is defined under Clause 1, Article 161 of the 2019 Labor Code as follows: “A domestic helper is an employee who regularly performs tasks within the household of one or more families.”
First, the parties are required to enter into a written labor contract.
According to Article 88 of Decree 145/2020/NĐ-CP, “A domestic helper is an employee as defined under Clause 1, Article 3 of the Labor Code who enters into a written labor contract.” This requirement is established to ensure clarity regarding the rights and obligations of the parties involved, particularly to protect domestic helpers.
However, in practice, domestic help relationships are often established verbally. In Judgment No. 02/2021/LĐ-PT dated February 1, 2021, of the People’s Court of Bà Rịa – Vũng Tàu Province, concerning “a dispute over payment of labor wages,” Mr. Bản and Mr. Q. Chung reached an oral agreement without a written contract. Similarly, in the case between Ms. Kim and Ms. Lê Thị and Mr. Nguyễn Ngọc
[Judgment No. 06/2016/LĐ-PT dated August 19, 2016, of the People’s Court of Cần Thơ City regarding a wage dispute], or the dispute between Ms. Trương Kim P and Ms. Nguyễn Thị Đ [Judgment No. 01/2019/LĐ-ST dated February 26, 2019, of the People’s Court of Cà Mau City, Cà Mau Province, concerning a dispute between a domestic helper and an employer], the parties only made oral agreements due to their familiarity with each other, without formalizing a contract.
This practice persists because domestic help relationships are often viewed as informal employment within the informal economic sector. Both employees and the households hiring domestic helpers typically lack substantial knowledge of labor law. In some cases, even when aware of legal regulations, the parties struggle to distinguish when to apply the Labor Code versus civil law. Legal provisions would better align with reality if the State only required an agreement between the parties, coupled with evidence that the employee receives wages and is subject to the management, direction, and supervision of the employer.
Second, for work to qualify as domestic help, the employee’s tasks must constitute “household tasks,” including housework, housekeeping, childcare, care for the sick or elderly, driving, gardening, and other tasks for the household that are unrelated to commercial activities.
Previously, “other household tasks unrelated to commercial activities” was understood to include: cooking for family members without operating a food business; growing vegetables, fruits, ornamental plants, or raising livestock and poultry for the household’s personal use rather than for sale or trade; cleaning the house, yard, or guarding the home and family property, as opposed to workshops, shops, offices, or production and business premises;
driving to transport family members or household goods, not for transporting individuals involved in production or business activities or moving goods, materials, or supplies for commercial purposes; tutoring family members in cultural studies; washing clothes and bedding for family members, not operating a laundry business or washing protective work clothing for individuals hired for the household’s production or business activities;
and other tasks serving the daily life and needs of the household and its members, without directly or indirectly generating income for the household or its individuals. In the dispute where Mr. Q. Chung sued Mr. Đầu K. Bản for payment of labor wages, the trial panel determined that Mr. Q. Chung performed some of the aforementioned household tasks. This finding served as one of the bases for the panel to partially uphold Mr. Q. Chung’s claim.
Third, the household tasks must be performed “regularly.”
This characteristic of the labor contract has been widely recognized by experts and researchers in labor law. The term “regularly” can be understood as tasks under the labor contract that are repeated over a specific period, such as hourly, daily, weekly, or monthly.
In the case between Ms. Kim and Ms. Lê Thị and Mr. Nguyễn Ngọc, the statements of all parties consistently confirmed that Ms. Kim resided at the defendants’ home for two years. This was a key factor in the trial panel’s resolution of the case.
In the present case, Mr. Bản argued that Mr. Q. Chung’s work was not continuous, claiming that Mr. Q. Chung only assisted him sporadically after tending to his goats, or that on days when Mr. Q. Chung helped him, Mr. Bản’s wife would take over goat-herding duties for Mr. Q. Chung.
Regarding farm work for his family, Mr. Bản further contended that it took only about one to two hours, not a full workday. Similarly, he asserted that Mr. Q. Chung’s assistance in building a fence was completed in a single afternoon, and since the nylon netting did not fully enclose the two farm plots, it did not require much time. Overall, the defendant’s position focused on demonstrating that the relationship between the parties lacked regularity. However, the trial panel did not consider this argument from Mr. Bản.
The trial panel primarily evaluated the construction assistant work performed by Mr. Q. Chung. According to a witness (Mr. B, a mason), it was confirmed that Mr. Q. Chung worked as an assistant and completed 16 workdays. Given these 16 workdays, the author believes that the labor relationship between the parties satisfies the requirement of regularity.
Fourth, the workplace is at one or more households.
In the case between Ms. Lê Thị and Mr. Nguyễn Ngọc, Ms. Kim—the employee—lived at the household of Ms. Lê Thị and Mr. Nguyễn Ngọc—the employers. This is a fundamental indicator distinguishing domestic helpers from other employees.
In practice, many individuals perform household tasks but do not reside at the hiring household. Based on Mr. Q. Chung’s account, it is evident that many of the tasks he performed did not take place at Mr. Bản’s household. Specifically: assisting Mr. Bản in repairing an eatery in L neighborhood, M ward, Ph town; building a fence at Viên Thành Pagoda in T neighborhood, Ph ward, Ph town; constructing a tomb for Mr. Bản’s child at a cemetery in T neighborhood, Ph ward, Ph town; and building a house for Mr. Bản’s son in T neighborhood, Ph ward, Ph town.
- Working Hours and Wages of Domestic Helpers
2.1. Working Hours of Domestic Helpers
Due to the specific nature of domestic help labor relationships, which are typically established verbally and involve small-scale, sporadic tasks without formal timesheets, trial panels often face challenges in determining the working hours of domestic helpers.
For employees who reside and live at the employer’s household, they typically perform tasks such as cooking for family members, growing vegetables, fruits, ornamental plants, raising livestock or poultry for household use, cleaning the house and yard, and guarding the home.
Each task is generally completed in a short amount of time, with the total not exceeding 8 hours per day. The working hours used to calculate wages for these employees are determined based on the months or days they have spent at the hiring household. In the case between Ms. Lê Thị and Mr. Nguyễn Ngọc, all parties consistently testified that Ms. Lê Thị lived at the defendants’ home for two years. The trial panel inferred that her working time also amounted to two years.
For employees who do not reside at the household, they typically come to the employer’s home to perform housework for a short duration, such as 2 or 4 hours (one session). These individuals are considered part-time employees under labor law. In rural areas, one session of work (from 4 to 5 hours) is counted as one workday, and the parties often agree to settle wages on a daily basis. However, if the working time is very brief, such as 1 to 2 hours, it becomes difficult for the parties to calculate and settle wages.
In the dispute between Mr. Bản and Mr. Q. Chung, Mr. Bản argued that Mr. Q. Chung’s farm work for his family took only about 1 to 2 hours, not a full workday. Consequently, Mr. Bản recognized fewer workdays than Mr. Q. Chung claimed. Specifically, while Mr. Q. Chung calculated 85 workdays (including 29 workdays as a construction assistant and 56 workdays for other household tasks), Mr. Bản acknowledged only approximately 34 to 36 workdays (comprising 16 workdays as a construction assistant and 18 to 20 workdays for other household tasks combined).
Based on the witness testimony and the defendant’s admission regarding the unpaid workdays, the trial panel partially upheld the plaintiff’s claim and ordered the defendant, Mr. Đầu K. Bản, to pay the plaintiff, Mr. Tôn Q. Chung, wages for 36 workdays (18 workdays as a construction assistant plus 18 workdays for other tasks). The 18 workdays for other tasks were calculated by the trial panel as an accumulation of multiple days of work, each lasting approximately 1 to 2 hours.
2.2. Wages of Employees in Household Work
In labor relations involving household work, particularly in rural areas, the parties often agree to pay wages on a daily basis. The parties may agree that each day constitutes one work unit. The number of work units corresponds to the number of days worked by the employee.
In this case, the parties could not agree on the applicable wage rate. Mr. Q. Chung asserted that construction helpers were paid at a rate of 270,000 VND per work unit, while household helpers were paid at a rate of 300,000 VND per work unit. Conversely, Mr. Bản argued that the rate for construction helpers was only 170,000 VND per work unit. This situation requires the adjudicating council to rely on the provisions of current labor laws and local practices to determine a suitable resolution.
Vietnamese labor law currently stipulates regional minimum wages by month or by hour. Under Article 54 of Decree 145/2020/ND-CP, “the daily wage is paid for one working day. If the employment contract specifies monthly wages, the daily wage is calculated by dividing the monthly wage by the number of normal working days in the month, as prescribed by law. If the employment contract specifies weekly wages, the daily wage is calculated by dividing the weekly wage by the number of working days in the week as agreed upon in the employment contract.” However, neither Mr. Bản nor Mr. Q. Chung agreed to a monthly wage.
If the daily wage were based on the monthly wage, the adjudicating council could rely on the provision stating, “the wage for a job or position must not be lower than the minimum wage.” Accordingly, Mr. Q. Chung’s daily wage could be calculated based on the regional minimum monthly wage and the number of workdays in the month (if the parties had reached an agreement). However, the parties did not agree on the number of workdays in the month. Therefore, the adjudicating council cannot definitively resolve the dispute.
In this case, the court of first instance relied on witness testimony, the prevailing wage rates in the locality at the time of hiring, and determined the wages for 36 work units (18 units of construction work + 18 units of household work) to be 10,260,000 VND. This resolution was affirmed by the appellate court and is consistent with the State’s minimum wage regulations.
However, there are cases where employees are not guaranteed the minimum wage. According to the ILO, household employees are among the lowest-paid workers and often belong to the most informal group of wage earners. They are frequently excluded from minimum wage protections and insurance. The ILO emphasizes that household employees should not be discriminated against. They should be entitled to a minimum wage equal to that of other employees. A minimum wage recognizes their contribution to the economy and society, serving as a vital mechanism to ensure the principle of equal pay for work of equal value.
In the scenario, “Mr. Nguyễn Ngọc and Mrs. Lê Thị admitted to paying Mrs. Kim a monthly wage of 2,000,000 VND. This can be considered the wage agreed upon by the plaintiff and the defendant.” According to legal provisions, from the commencement of her work on March 30, 2012, to December 31, 2012, Mrs. Kim’s wage should have been subject to the minimum wage for districts in Cần Thơ City (Region II), which was 1,780,000 VND per month. Moving into 2013, the minimum wage for districts in Cần Thơ City (Region II) increased to 2,100,000 VND per month. Subsequently, in 2014, the minimum wage for districts in Cần Thơ City (Region II) rose to 2,750,000 VND per month.
Hence, for her first month and the subsequent months of 2012, the payment of 2,000,000 VND by Mrs. Lê Thị’s and Mr. Nguyễn Ngọc’s household to Mrs. Kim was appropriate. However, from January 1, 2013, until her resignation, if the agreed wage was 2,000,000 VND per month, such an agreement would be unlawful. Even if Mrs. Kim received the full amount, it would still fail to meet essential living expenses. Furthermore, the defendant’s household did not pay Mrs. Kim’s wages from May 2012 to April 2014, severely infringing upon the plaintiff’s rights and interests.
Mrs. Kim was compelled to take on additional work, such as selling goods at a canteen for Mrs. Loan from 5 a.m. to 7 a.m. for eight months, earning 800,000 VND per month. Additionally, she worked as a babysitter for Mrs. Xuân from 11 a.m. to 1:30 p.m. daily, earning between 550,000 VND and 600,000 VND per month.
The adjudicating council argued that “although the wages agreed upon by the two parties were lower than the regional minimum wage stipulated by the Government, since both parties consented, no adjustment is necessary.” This resolution fails to protect the rights of the weaker party—the household employee.
III. Conclusion
Household labor relations are becoming increasingly common and hold an important position in Vietnam’s labor market. Although many disputes have been resolved by courts, no systematic study has yet been conducted on the practical adjudication of this type of dispute. Numerous legal provisions specifically regulating this type of labor relation, such as the termination of employment contracts, working conditions, labor discipline, and wages, have not been fully analyzed or assessed.
Students, researchers, and practitioners should conduct more in-depth studies on the household labor regime. The findings from such research will contribute to the improvement of theoretical and practical issues.
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