The Labor Code 2019 has many notable changes related to the issue of termination of employment contracts between employees and employers. To clarify this issue, Hong Bang Law Firm would like to send to Clients the following notes:

Employees have the right to unilaterally terminate the employment contract for no reason

Clause 1, Article 35 of the Labor Code 2019 stipulates that An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employee in advance:

• at least 45 days in case of an indefinite-term employment contract;
• at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
• at least 03 working days in case of an employment contract with a fixed term of under 12 months;
• The notice period in certain fields and jobs shall be specified by the government.

Accordingly, employees may unilaterally terminate the employment contract without reason but need to ensure the prior notice period in accordance with the above provisions.

7 cases where the employee unilaterally terminates the employment contract without prior notice

Compared to the Labor code 2012, the Labor code 2019 has specified all cases that allow employees to unilaterally terminate the employment contract without notice.

Clause 2, Article 35 of the Labor code in 2019 clearly states 07 cases where the employee has the right to unilaterally terminate the contract without warning as follows:

• 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;
• is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.
• 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;
• is sexually harassed in the workplace;
• is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.
• reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or

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.

3 more cases of employers being unilaterally terminated

The right to unilaterally terminate the employment contract is also prescribed by law for employers to balance interests between the parties.

Clause 1, Article 38 of the Labor Code in 2012 noted that employers are entitled to unilaterally terminate the employment contract with the employee in the following cases:

• The employee often fails to perform his/her job stated in the labor contract;
• The employee is sick or has an accident and remains unable to work after having received treatment for 12 consecutive months, in case he/she works under an indefinite-term labor contract, or for 6 consecutive months, in case he/she works under a definite-term labor contract, or more than half the term of the labor contract, in case he/she works under a labor contract for a seasonal job or a specific job of under 12 months.
• When the employee’s health has recovered, he/she must be considered for continued entry into the labor contract;
• If, as a result of natural disaster, fire or another force majeure event as prescribed by law, the employer, though having applied every remedial measure, has to scale down production and cut jobs;
• The employee is absent from the workplace after after 15 days from the expiration of the contract suspension period.

According to the provisions of the Labor Code in 2019, employers are allowed to add 03 cases of unilateral termination of contracts considered legal:

• The employee is not present at work without acceptable excuses for at least 05 consecutive working days;
• The employee fails to provide truthful information during the conclusion of the employment contract such as his or her full name, date of birth, gender, place of residence, education level,…
• The employee reaches the retirement age, unless otherwise agreed by the parties;
  

No longer stipulates the number of days to be notified before the contract expires

Clause 1, Article 47 of the Labor Code in 2012 stipulates the responsibility of the employer when terminating the employment contract as follows:

“ At least 15 days before the date of expiry of a definite-term labor contract, the employer shall give a written notice of the time of termination of the contract to the employee concerned.”

According to the above provisions, before the employment contract expires, employers are responsible for notifying employees in writing at least 15 days in advance about the time of termination of the employment contract.

Meanwhile, the Labor code in 2019 stipulates that employers must notify employees in writing of the termination of employment contracts when the employment contract expires(as prescribed in Clause 1 Article 45).).

Thus, currently, employers are only obliged to notify employees in writing when the employment contract expires without ensuring the notice period.

Extend the payment period between the parties at the termination of the employment contract

In order to ensure the performance of payment responsibilities between employees and employers at the termination of the employment contract, the employment contract in 2019 extends the payment period of payment of funds related to the interests of each party.

According to the new regulations, within 14 working days from the date of termination of the employment contract(according to the 2012 Labor Code of 07 days),the two parties are responsible for paying the full amounts related to the interests of each party, except for some cases prescribed by law but not more than 30 days.

If the 2012 fixed assets only record that in special cases, the parties are entitled to extend the payment period, the 2019 fixed assets have specified the cases that are extended this term including:

• 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 enjoyment of assets of the enterprise or cooperative;
• Natural disasters, fire, hostility or major epidemics.

If you need more detailed advice as well as how to access this service, please contact Lawyer Nhat Nam via hotline: 0912.35.65.75, 0912.35.53.53 or call the legal consulting centre at 1900.6575 or send a service request via email: lienheluathongbang@gmail.com.

We wish you and your family good health, peace and success!

Best regards,