Obligations when unilaterally terminating the labor contract. Let us learn about this topic with LSX law firm as follow:
Situation when unilaterally terminating the labor contract
My friend signed a teaching contract with a private school for 5 years in the contract clearly stated. But after only two years, the school found a replacement and unilaterally terminated the contract. My friend has been paying insurance for 2 years.
My friend was sometimes reminded a little bit during the working time but not too much of a mistake. So what will my friend do, and what rights and obligations will my friend have in this case?
Unilateral termination of the labor contract
The employer’s right to unilaterally terminate the labor contract at Points a and c; Clause 1, Article 36 of the Labor Code is prescribed as follows:
The employer must specify the criteria for assessing the level of work completed in the enterprise’s regulations as a basis for evaluating employees; who regularly fail to meet the work according to the labor contract. The employer promulgates the assessment of task completion; after consulting the representative organization of the labor collective at the grassroots level.
According to you, your friend during his working time is also occasionally reminded but not too wrong. This is not enough to determine that the employee regularly does not complete the work according to the labor contract. Thus, the school’s unilateral termination of this labor contract is groundless and violates the labor law.
When unilaterally terminating a labor contract in the cases specified at Points a; b, c, dd, and g, Clause 1, Article 136, the employer must notify the employee in advance as follows:
a) At least 45 days for an indefinite term labor contract;
b) At least 30 days for a definite-term labor contract with a term of between 12 and 36 months;
c) At least 03 working days for a definite-term labor contract with a term of fewer than 12 months; and the case specified at Point b, Clause 1 of this Article;
d) For many specific industries, trades, and jobs, the time limit for advance notice shall comply with the Government’s regulations.
If unilaterally terminating the labor contract specified at Points d and e, Clause 1 of this Article; the employer must not notify the employee in advance.
Obligations when unilaterally terminating the labor contract
Then, based on Article 41 of the Labor Code 2019 stipulating the obligations of the employer when unilaterally terminating the labor contract illegally, then:
1. Must accept employees back to work undersigned labor contracts; must pay wages, pay social insurance, health insurance, unemployment insurance in the days the employees are not allowed to work; and must pay an additional amount to the employee at least equal to 2 months’ salary according to the labor contract.
After being reinstated to work; the employee shall refund the employer the severance allowance or job loss allowance if received from the employer.
If there is no longer a position or job that has been signed in the labor contract; but the employee still wants to work, the two parties shall agree to amend and supplement the labor contract.
In case of violation of the provisions on the notice period specified in Clause 2; Article 36 of this Code, they must pay an amount of money corresponding to the salary under the labor contract in the days without prior notice.
2. If the employee does not want to continue working, in addition to the payable amount specified in Clause 1 of this Article; the employer must pay severance allowance as prescribed in Article 46 of this Code to terminate the labor contract.
3. In case the employer does not want to take back the employee and the employee agrees; in addition to the amount the employer must pay as prescribed in Clause 1 of this Article and the severance allowance specified in Article 46 of this Code, the two parties agree on additional compensation for the employee but at least equal to 02 months’ salary under the labor contract to terminate the labor contract.
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Related questions
Unilateral termination of an employment contract is a case; in which one party to the employment relationship wishes to terminate the employment relationship without any agreement; or agreement with the other party in accordance with the law. If unilaterally terminating the labor contract in contravention of the law; there may arise a problem of compensation for damage.
The subject of regulation of the labor law is the social relations related to the employer (labor relations); and the relations arising in the process of using the labor (relationships related to the labor relations) including employment relationship; apprenticeship relationship, damage compensation relationship; social insurance relationship, relationship between employer and representative of the labor collective; dispute settlement relationship labor disputes and strikes, relations on labor management
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