The legal consequence of the termination of an employment contract is the termination of the employment relationship, which is an important legal event because it affects the employment, income, and life of the employee or even their family. However, in some cases, this is inevitable in labor relations, because for some objective reasons, people have to suspend labor. So, in this article, LSX legal firm will inform you: “Unilaterally terminating labor contract procedure in Vietnam 2022”
Legal ground
- Labor Code 2019
Can an employee unilaterally terminate a labor contract?
Currently, employees have the right to unilaterally terminate the labor contract according to Clause 1, Article 35 of the Labor Code 2019:
- An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employee in advance:
a) at least 45 days in case of an indefinite-term employment contract;
b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
c) at least 03 working days in case of an employment contract with a fixed term of under 12 months;
d) The notice period in certain fields and jobs shall be specified by the government.
Thus, before leaving, employees need to notify the employer depending on the type of labor contract that the two parties have previously signed. This is both for the employee to have the plan to arrange personnel, the work left by the employee as well as a procedure for the employee to have a basis to enjoy benefits when unilaterally terminating the contract. legal labor.
Cases that employee can unilaterally terminate the labor contract without giving prior notice
Clause 2, Article 35 of the Labor Code also stipulates cases in which an employee can unilaterally terminate a labor contract without prior notice as follows:
“2. An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:
a) is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labor Code;
b) is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.
c) is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity, or honor; is forced to work against his/her will;
d) is sexually harassed in the workplace;
dd) is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.
e) reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or
g) finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.”
Cases that employers have the right to unilaterally terminate the labor contract
According to the provisions of Clause 1, Article 36 of the Labor Code 2019, the employer has the right to unilaterally terminate the labor contract in the following cases:
- Firstly, the employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);
- Secondly, the employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.
Upon recovery, the employer may consider concluding another employment contract with the employee;
- Thirdly, in the event of a natural disaster, fire, major epidemic, hostility, relocation, or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;
- Fourthly, the employee is not present at the workplace after the time limit specified in Article 31 of the Labor Code;
- Fifthly, the employee reaches the retirement age specified in Article 169 of the Labor Code, unless otherwise agreed by the parties;
- Sixthly, the employee quits his/her fails to go to work without acceptable excuses for at least 05 consecutive working days;
- Lastly, the employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of the Labor Code in a manner that affects recruitment.
Procedures for unilateral termination of labor contract
The process of unilaterally terminating a labor contract includes:
- The party to unilaterally terminate the labor contract determines the grounds permitted by law to terminate the labor contract legally.
- Notice unilaterally terminating the labor contract, clearly stating the time of termination.
- Complete the remaining obligations as agreed in the labor contract and the content of the notice.
Consequences of unilaterally terminating the labor contract
When the labor contract is unilaterally terminated, the contract shall be terminated from the date indicated on the notice of unilateral termination of the labor contract which was sent earlier. The parties not obligated to perform their obligations, unless having an agreement on penalties for violations, compensation for damages, and agreement on dispute settlement. The obligee as agreed in the labor contract has the right to request the other party to pay the unpaid amounts according to the labor contract agreement.
So, when unilaterally terminating the contract:
- The employment contract will terminate and no longer bounds the parties with the contractual agreement.
- The parties still have the right to sue to claim compensation for damage and fines for violations if having grounds after the time the labor contract has ended.
- Having the right to require the obligor to pay the full amount as agreed in the labor contract, the late payment will be charged interest on late payment according to the Civil Code 2015.
Legal service of LSX Legal Firm
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- Legal advice related to new regulations;
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Contact LSX
Finally, hope this article is useful for you to answer the question about “Unilaterally terminating labor contract procedure in Vietnam 2022”. If you need any further information, please contact LSX Law firm: +84846175333 or Email: [email protected]
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Related questions
Complete the procedures for verification of duration of participation in social insurance and unemployment insurance, return them and original copies of the employee’s other documents (if any);
Provide copies of the documents relevant to the employee’s work if requested by the employee. The employer shall pay the cost of copying and sending the documents.
Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may extend, but shall not exceed 30 days:
Shutdown of business operation of the employer that is not a natural person;
Changes in the organizational structure, technology, or changes due to economic reasons;
Full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to the enjoyment of assets of the enterprise or cooperative;
Natural disasters, fire, hostility, or major epidemics.
Unilateral termination of a labor contract means an act of the employee or the employer that establishes the termination of the rights and obligations of the parties in the signed labor contract.
Conclusion: So the above is Unilaterally terminating labor contract procedure in Vietnam 2022. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
