Termination of a labor contract is a matter of particular concern to employees and employers, how to terminate labor contracts in accordance with regulations? What is the liability for illegal termination? Now, let’s find out with LSX with the matter “Vietnam law on termination of a labor contract with indefinite term” through the article below.
Legal grounds
- Civil Code 2015
- Labor Code 2019
What is a labor contract?
According to the Civil Code 2015, Article 385 stipulates: “Civil contract is an agreement between parties on the establishment, change or termination of civil rights and obligations”. Thus, in essence, a contract must be an agreement, a covenant between the parties and its content must contain provisions on the rights and obligations of the involved parties (in each specific field).
Labor contract is also a type of contract (previously a labor contract is considered a civil contract, later it is separated into a type of labor contract), so it must also carry the nature of a contract. In general, it is escrow, formed on the basis of the agreement of the parties.
– Firstly, according to Article 13 of the Labor Code 2019 stipulates: “A labor contract is an agreement between an employee and an employer on paid jobs, wages, working conditions, rights and obligations of each party in the labor relationship”. It can be seen that the nature of the labor contract does not depend on the name but on the content of the agreement between the two parties, which can show paid employment, salary and management, administration and supervision. of one party to the other. This helps employees to ensure their rights regardless of whether the employer uses any term to conceal the labor relationship, such as agreement, commitment, contract, covenant, agreement, etc.
– Secondly, a labor contract must be entered into through the following forms: written agreement; committing through electronic means in the form of data messages; or orally. Entering into a labor contract depends on the nature of the work and the subject of the contract.
– Thirdly, a labor contract is divided into two types, including: indefinite term labor contract (a contract in which the two parties do not specify the term, the time of termination of the contract’s validity) and definite term labor contract (a contract with an indefinite term) contract in which the two parties determine the term, the time of termination of the contract’s validity within a period not exceeding 36 months from the effective date of the contract).
Thus, the Labor Code 2019 has eliminated seasonal labor contracts; any type of labor relationship with any job under 36 months (including work performed within 1-2 months) is considered a fixed-term labor contract.
General provisions on a labor contract
– A labor contract is signed on the principle of voluntariness and equality, in accordance with the provisions of the labor law.
– A labor contract must have the following main contents: job, working time, rest time, salary, working location, contract duration, conditions on occupational safety, occupational hygiene and social insurance for employees .
– A labor contract takes effect from the date of signing or from the date agreed upon by the two parties or from the date the employee starts working.
– During the performance of a labor contract, the contracting parties may agree to amend the content of the labor contract. In case, there is a change in one of the main contents of working conditions, the employee has the right to sign a new labor contract.
– The regime of entering into a labor contract, performing a labor contract, suspending the performance of a labor contract and terminating a labor contract are prescribed by the Labor Code 2019.
Vietnam law on termination of a labor contract with indefinite term
According to (Article 34 of the Labor Code 2019), cases of contract termination with indefinite term are prescribed as follows:
1. The employment contract expires, except for cases regulated in Clause 4 of Article 177 of this Code.
2. The tasks stated in the employment contract have been completed.
3. Both parties agree to terminate the employment contract.
4. The worker is sentenced to imprisonment without a suspended sentence or discharged sentence as stipulated in Clause 5 of Article 328 of the Criminal Procedure Code or death penalty; or is prohibited from performing the work stipulated in the employment contract by a legally effective conviction or judgment of the Court.
5. The worker who is foreigner working in Viet Nam is deported according to a legally effective judgement or decision of the Court or a decision of a competent state agency.
6. The worker dies or is declared by the court to have lost the capacity for civil acts or to be missing or dead.
7. The employer who is an individual dies or is declared by the Court as having lost the capacity for civil acts or to be missing or dead. The employer who is not an individual ceases operations or is declared by the business registration agency under the Provincial People’s Committee to have no legal representative or competent person with the rights and obligations of a legal representative.
8. The worker is dismissed as a result of disciplinary action.
9. The worker unilaterally terminates the employment contract in accordance with Article 35 of this Code.
10. The employer unilaterally terminates the employment contract in accordance with Article 36 of this Code.
11. The employer lays off workers in accordance with Articles 42 and 43 of this Code.
12. The work permit of a foreign worker in Viet Nam expires as stipulated in Article 156 of this Code.
13. Unsatisfactory probation where the probation agreement is an integral part of the employment contract, or cancellation of the probation contract by either party.
Rights and responsibilities of the parties when terminating a labor contract according to Vietnamese law
Firstly, when terminating a labor contract according to the law, employees will be entitled to salary and other amounts under their rights; severance allowance as prescribed in Article 46 of the Labor Code 2019; job loss allowance under Article 47 of the Labor Code 2019. In case, an enterprise or cooperative is terminated, dissolved or bankrupt, the salary, social insurance, health insurance, and unemployment insurance , severance pay and other benefits of employees under the collective labor agreement, labor contract with priority payment by the employer and other benefits that the employer is responsible for performing.
The employee must also be responsible for handing over the work, documents and records related to the employee’s work to the personnel designated by the employer; and pay all amounts related to the employer’s interests.
Secondly, the employer has the right to designate personnel to receive the work handover, documents and records related to that employee’s work; receive full payment from the employee for the amounts related to the employer’s interests and other benefits that the employee is responsible for performing.
Accordingly, within 14 working days from the date of termination of a labor contract, the employer must pay in full all amounts related to the employee’s interests, which can be extended but must not exceed 30 days in the following cases. The employer who is not an individual, terminates the operation; Employers change structure, technology or for economic reasons; Split, merge, sale, lease, change the type of business; transfer of ownership, right to use assets of enterprises or cooperatives; due to natural disaster, fire, enemy sabotage or dangerous disease. In addition, according to the provisions of Article 48 of the Labor Code 2019, the employer is also responsible for completing the procedures to confirm the time of payment of social insurance and unemployment insurance and return it together with the original of other documents if the employer has kept and provide copies of documents related to the employee’s working process if requested by the employee. Cost of copying and sending documents shall be paid by the employer.
The Labor Code 2019 marks a development closer to international labor standards. Many new points in the current Labor Code, especially provisions on termination of a labor contract, bring great benefits to both employees and employers. However, in order to improve enforcement efficiency, it is required that employees and employers have a clear understanding to actively use their rights and at the same time have the responsibility to comply with the provisions of the law.
Please see more:
- Do I have to pay the Insurance for work-related accident or occupational disease for domestic workers in Vietnam?
- Policy on the salary of employees by the law of Vietnam
- What are rights and obligations of employees and employers under Viet Nam Labor Law?
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Frequently asked questions
The employee has the right to unilaterally terminate the labor contract without reason, as long as the following conditions are met (except for some cases where no prior notice is required by law):
– At least 45 days if working under an indefinite term labor contract;
– At least 30 days if working under a definite-term labor contract with a term from 12 months to 36 months;
– At least 03 working days if working under a definite-term labor contract with a term of less than 12 months;
– For a number of specific industries, trades and jobs, the notice period shall comply with the Government’s regulations.
According to the provisions of Clause 3, Article 36 of the Labor Code 2019, the employer has the right to unilaterally terminate the labor contract without prior notice in the following cases:
– The employee is not present at the workplace after the time limit specified in Article 31 of the Labor Code 2019.
– The employee voluntarily quits his job without a valid reason for 05 consecutive working days or more.
According to the provisions of Clause 2, Article 35 of the Labor Code 2019, an employee has the right to unilaterally terminate the labor contract without prior notice in the following cases:
a) Not being assigned work or a workplace or not being provided with the agreed working conditions, except for cases stipulated in Article 29 of this Code.
b) Not being paid in full or on time, except for cases regulated in Clause 4 of Article 97 of this Code.
c) Being maltreated, physically assaulted, or verbally or non-verbally insulted by the employer, being subjected to any actions by the employer that affect the health, dignity or honour of the worker, or being subjected to forced labour.
d) Being sexually harassed at the workplace.
đ) A female worker who is pregnant and elects to take leave consistent with Clause 1 of Article 138 of this Code.
e) Reaching the retirement age as stipulated in Article 169 of this Code, unless otherwise agreed by the parties.
g) The employer provides inaccurate information as stipulated in Clause 1 of Article 16 of this Code that affects the implementation of the employment contract.
Conclusion: So the above is Vietnam law on termination of a labor contract with indefinite term. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
