Rights and obligations when unilaterally terminating labor contracts

Lawyer specializing in labor dispute resolution in Hanoi, vietnam - Dragon Law Firm with many years of experience in solving labor disputes will answer all questions related to labor contracts. Now the problem of unilaterally terminating a labor contract is occurring frequently in the labor relations, understanding that problem labor lawyer will answer you about the rights and obligations when the application termination of labor contracts.

      Lawyer specializing in labor dispute resolution in Hanoi, vietnam - Dragon Law Firm with many years of experience in solving labor disputes will answer all questions related to labor contracts. Now the problem of unilaterally terminating a labor contract is occurring frequently in the labor relations, understanding that problem labor lawyer will answer you about the rights and obligations when the application termination of labor contracts.

Regulations on employees:

"Article 37. The right of employees to unilaterally terminate labor contracts

1. An employee working under a definite-term labor contract, a seasonal labor contract or performing a certain job of under 12 months may unilaterally terminate the labor contract prior to its expiry in the following cases:

a/ He/she is not assigned to the job or workplace or is not given the working conditions as agreed in the labor contract;

b/ He/she is not paid in full or on time as agreed in the labor contract;

c/ He/she is maltreated, sexually harassed or is subject to forced labor;

d/ He/she is unable to continue performing the labor contract due to personal or family difficulties;

e/ He/she is elected to perform a full-time duty in a people-elected office or is appointed to hold a position in the state apparatus;

f/ A female employee who is pregnant and must take leave as prescribed by a competent health establishment;

g/ If he/she is sick or has an accident and remains unable to work after having received treatment for 90 consecutive days, in case he/she works under a definite-term labor contract, or for a quarter of the contract’s term, in case he/she works under a labor contract for a seasonal job or a specific job of under 12 months.

2. When unilaterally terminating the labor contract under Clause 1 of this Article, the employee shall inform such to the employer:

a/ At least 3 working days in advance, in the case specified at Point a, b, c or g, Clause 1 of this Article;

b/ At least 30 days in advance for a definite-term labor contract; at least 3 working days for a seasonal or work-specific labor or a specific job of under 12 months in the case specified at Point d or e, Clause 1 of this Article;

c/ In the case specified at Point f, Clause 1 of this Article, a prior notice should be given to the employer in accordance with Article 156 of this Code.

3. An employee working under an indefinite-term labor contract may unilaterally terminate the labor contract provided that he/she informs such to the employer at least 45 days in advance, except the case specified in Article 156 of this Code."

"Article 43. Obligations of an employee when unilaterally terminating a labor contract illegally

1. Not to be entitled to a severance allowance and to compensate the employer half of a month’s wage in accordance with the labor contract.

2. If violating the provision on the time of prior notice, to compensate the employer an amount equivalent to the employee’s wage for working days without prior notice.

3. To reimburse training costs to the employer in accordance with Article 62 of this Code."

Regulations on employers

"Article 38. The right of employers to unilaterally terminate labor contracts

1. An employer may unilaterally terminate a labor contract in the following cases:

a/ The employee often fails to perform his/her job stated in the labor contract;

b/ 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;

c/ 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;

d/ The employee is absent from the workplace after the time limit specified in Article 33 of this Code.

2. When unilaterally terminating a labor contract, the employer shall notify the employee in advance:

a/ At least 45 days, for indefinite-term labor contracts;

b/ At least 30 days, for definite-term labor contracts;

c/ At least 3 working days, for seasonal or work-specific labor contracts of under 12 months as stipulated at Point b, Clause 1 of this Article."

"Article 42. Obligations of an employer when unilaterally terminating a labor contract illegally

1. To reinstate the employee in accordance with the original labor contract; to pay the wage and social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least 2 months’ wage in accordance with the labor contract.

2. In case the employee does not wish to return to work, in addition to the compensation stipulated in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 48 of this Code.

3. In case the employer does not want to reinstate the employee and the employee agrees, in addition to the compensation stipulated in Clause 1 of this Article and the severance allowance stipulated in Article 48 of this Code, the two parties shall negotiate on an additional compensation which must be at least equal to 2 months’ wage in accordance with the labor contract in order to terminate the labor contract.

4. In case the position or job agreed in the labor contract is no longer vacant and the employee still wishes to work, the employer shall pay the compensation stipulated in Clause 1 of this Article and both parties shall negotiate to modify and supplement the labor contract.

5. If violating the provision on the time of prior notice, the employer shall compensate the employee an amount equivalent to his/her wage for the working days without prior notice."

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