Question:
Dear Lawyer, I had worked for a company for more than a year. A week ago, I found a better job so I left without prior notice. I want to know am I illegal in this case? How will my salary and social insurance be solved? Thank you.
Answer:
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Table of Contents/Mục lục
About leaving without prior notice
Base on the Article 37 – Labour Code 2012 and Article 11 – Decree No.05/2015/NĐ-CP about The right of employees to unilaterally terminate labor contracts, you have the right to unilaterally terminate in this case:
1. The right of employees to unilaterally terminate labor contracts
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. Employee’s unilateral termination of employment contracts
The employee shall have the right to unilaterally terminate the employment contract as stipulated at Point c, Clause 1, Article 37 of the Labor Code if they suffer from the employer’s illegal acts like violent, aggressive behaviors, disrespect and humiliating acts, acts affecting the employee’s health, dignity, honor, and use of coercive measures or sexual harassment in the workplace.
The employee shall have the right to unilaterally terminate the employment contract at Point d, Clause 1, Article 37 of the Labor Code in the following cases:
- Quit the job to take care of their spouse, father , mother, father-in-law, mother-in-law, natural children and adopted children who are sick or involved in accidents;
- Leave for foreign countries to live or work;
- Help their families that are in trouble with natural disasters, conflagration, hostility, enemy-inflicted destruction, epidemics or relocation which the employee tries to overcome but can not continue to execute the employment contract.
However, based on Article 37.2 and 37.3 – Labour Code 2012, you must compliance the time limit for prior notice as follows:
- 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.
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.
Therefore, leaving without prior notice when you find a new job is illegal unilateral termination of a labor contract.
3. Obligations of an employee when unilaterally terminating a labor contract illegally
Base on Article 43 – Labour code 2012, there are your obligations when unilaterally terminating a labor contract illegally.
- 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.
- 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.
- To reimburse training costs to the employer in accordance with Article 62 of this Code
- About salary and social insurance:
Responsibilities of an employer in case of terminating labor contracts
Base on Article 47.2, 3 – Labour Code 2012, there are some Responsibilities of an employer in case of terminating labor contracts.
- Within 7 working days after termination of a labor contract, the two parties shall make all payments related to the interests of each party; in special cases, this time limit may be extended but must not exceed 30 days.
- The employer shall complete the confirmation procedure and return the social insurance book and other papers of the employee which are kept by the employer.
Therefore, within 7 working days (or special cases, this time limit may be extended but must not exceed 30 days.) after termination of a labor contract, your company must pay your wage after violating some obligations specified in Article 43.2, 3 Labour Code 2012 (half of a month’s wage in accordance with the labor contract, an amount equivalent to the employee’s wage for working days without prior notice and training costs, if yes) and after paying taxes and insurances.
In addition, your company shall complete the confirmation procedure and return the social insurance book and other papers of the employee which are kept by your company. Note, currently Labour Law doesn’t specify the duration for company to return your social insurance book, so you need contact closely to require your company return as soon as possible.
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