An employee nursing a child under 12 months old is dismissed by the company. Has the company broken the law, and what consequences follow? This article analyzes the three layers of consequences — administrative, labor, and criminal — of dismissing an employee nursing a child under 12 months, plus a critical distinction: the law prohibits dismissal “for the reason of” nursing, not an absolute ban in every case.
The short answer
Article 137.3, Labor Code 2019 provides: an employer must not dismiss or unilaterally terminate the labor contract of an employee for the reason of marriage, pregnancy, maternity leave, or nursing a child under 12 months old. Dismissal for the reason of nursing is prohibited and triggers three layers of consequences: (1) administrative penalties under Decree 283/2026/ND-CP; (2) compensation obligations under Article 41 of the Labor Code; (3) possible criminal liability under Article 162 of the Penal Code.
Critical distinction: prohibited by “reason,” not absolutely banned
The law prohibits dismissal “for the reason of” nursing a child under 12 months — not an absolute ban on dismissing anyone nursing a young child:
- Dismissal for other legitimate disciplinary reasons (the employee committed misconduct warranting dismissal under the registered internal labor regulations) remains in principle possible, but must follow proper disciplinary procedures (Articles 122–128, Labor Code).
- However, Decree 283/2026/ND-CP also penalizes disciplinary action against employees nursing children under 12 months (Article 26.2(h)) → the practical legal risk is very high and each case needs careful assessment.
- Proving the real reason for dismissal is the employer’s burden — the line between “dismissal for the reason of nursing” and “dismissal for legitimate disciplinary reasons during the nursing period” is a hot dispute in practice. This article does not claim every dismissal of a nursing employee is unlawful.
Layer 1 — Administrative penalties (Decree 283/2026/ND-CP, effective 10/9/2026)
- Article 26.2(i): a fine of VND 10–20 million (for individuals) for “dismissing an employee or unilaterally terminating a labor contract with an employee for the reason of marriage, pregnancy, maternity leave, or nursing a child under 12 months old.”
- Organizations: double = VND 20–40 million (Article 7.1, Decree 283/2026).
- Remedial measure (Article 26.3(c)): forcing the employer to reinstate the employee.
- Exceptions where termination is lawful (Article 137.3): the employer is an individual who dies, is declared incapacitated, missing, or dead; or a non-individual employer ceases operations or has no legal representative.
Note: Decree 283/2026/ND-CP has replaced Decree 12/2022/ND-CP (expired 10/9/2026) — the latter can no longer be cited as current law.
Layer 2 — Obligations for unlawful unilateral termination (Article 41, Labor Code)
Dismissal for the reason of nursing a child under 12 months is an unlawful unilateral termination. Under Article 41, the employer must:
- Reinstate the employee under the concluded contract;
- Pay wages and social, health, and unemployment insurance contributions for the days the employee was not allowed to work;
- Compensate at least 02 months’ wages under the labor contract;
- Recover severance/job-loss allowances already paid; pay additional wages for days without prior notice (if the notice period in Article 36.2 was breached).
- If the employee does not wish to continue → additional severance allowance (Article 46).
- If the employer does not wish to reinstate and the employee agrees → the parties negotiate at least 02 more months’ wages in compensation (Article 41.3).
Also: where a labor contract expires while a female employee is pregnant or nursing a child under 12 months, she is prioritized for a new contract (Article 137.3).
Layer 3 — Criminal liability (Article 162, Penal Code 2015)
- Article 162.2(c) (amended by Law 12/2017/QH14): anyone who, for self-seeking or other personal motives, unlawfully dismisses a person nursing a child under 12 months old causing serious consequences → a fine of VND 100–200 million or imprisonment of 01–03 years.
- Possible additional penalty: ban from holding office for 01–05 years (Article 162.3).
- Caution: the conditions “for self-seeking or other personal motives” and “causing serious consequences” are assessed by prosecution authorities case by case — not every unlawful dismissal leads to criminal prosecution.
Applicable legal framework (as of 14/10/2026)
| Instrument | Number | Effective | Status |
|---|---|---|---|
| Labor Code | 45/2019/QH14 (VBHN 18/VBHN-VPQH 2026) | 01/01/2021 | In force; Arts. 41, 137 unamended |
| Decree on administrative penalties for labor/social insurance | 283/2026/ND-CP (replacing Decree 12/2022/ND-CP) | 10/9/2026 | In force |
| Penal Code | 100/2015/QH15 (amended by Law 12/2017/QH14) | 01/01/2018 | In force |
Practical recommendations
- For employers: never dismiss or unilaterally terminate for the reason that an employee is nursing a child under 12 months. For other legitimate disciplinary reasons, strictly follow disciplinary procedures (Articles 122–128) and assess the risk — the law also penalizes disciplining this group.
- For employees: if dismissed for the reason of nursing, you may demand: administrative penalties against the company, reinstatement, compensation under Article 41; and report conduct meeting criminal thresholds.
- For both sides: keep all dismissal documents, decisions, and evidence of the real reason — the “true reason” is the decisive dispute point.
FAQ
Is dismissing an employee nursing a child under 12 months always unlawful? Not in every case. The law prohibits dismissal “for the reason of” nursing a child under 12 months (Article 137.3). Dismissal for other legitimate disciplinary reasons remains in principle possible, but the legal risk is very high and the reason must be proven.
What is the administrative fine for dismissal for the reason of nursing? VND 10–20 million for individuals; organizations face double = VND 20–40 million (Decree 283/2026/ND-CP), plus forced reinstatement of the employee.
What compensation does an unlawfully dismissed employee receive? Reinstatement; wages and social/health/unemployment insurance for days not allowed to work; at least 02 months’ wages in compensation; and other amounts under Article 41 of the Labor Code.
When does criminal liability arise? When the unlawful dismissal of a person nursing a child under 12 months is done for self-seeking or other personal motives and causes serious consequences (Article 162.2(c), Penal Code) → fine of VND 100–200 million or 01–03 years’ imprisonment.
Sources
- Labor Code 45/2019/QH14 (VBHN 18/VBHN-VPQH 2026), effective 01/01/2021: Art. 137.3; Arts. 36, 41, 46, 122–128.
- Decree 283/2026/ND-CP (issued 15/7/2026), effective 10/9/2026, replacing Decree 12/2022/ND-CP: Art. 26.2(h), 26.2(i), 26.3(c); Art. 7.1.
- Penal Code 100/2015/QH15 (amended by Law 12/2017/QH14), effective 01/01/2018: Art. 162.2(c), 162.3.
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This article provides general legal information and does not replace legal advice for any specific case. Content has been QA-reviewed by the AI Legal Council; it was not reviewed by a human lawyer.
