To terminate a labor contract, options encompass contract expiration, mutual agreement, unilateral termination, dismissal, workforce reduction, retirement, or other objective reasons. LawPlus meticulously analyzes these methods to ensure proper termination, aligning with prevailing labor regulations governing the termination of labor contracts.
Table of Contents/Mục lục
1. Cases of Unilateral Termination by Employers:
According to Article 34 of the 2019 Labor Code, there are 13 cases of terminating a labor contract, including 5 cases where the employer unilaterally terminates and 2 cases where termination is by mutual agreement or due to objective conditions.
Article 36 of the 2019 Labor Code specifies 7 cases where the employer unilaterally terminates the labor contract:
- Employee consistently fails to complete assigned tasks according to the employment contract criteria.
- Employee is ill or injured, has been treated for a specified period, and is unable to recover fully. Upon recovery, the employee may be considered for contract continuation.
- Natural disasters, fires, or other irresistible forces lead to necessary production contraction and workplace reduction.
- Employee is absent from the workplace for 15 days after the temporary work suspension period.
- Employee reaches the retirement age as stipulated, except in cases of other agreements.
- Employee voluntarily resigns without justifiable reason for 5 consecutive days or more.
- Employee provides dishonest personal information during contract signing, affecting the hiring process.
2. Key aspects in labor law and considerations for employees when terminating a labor contract:
Compared to the provisions in Article 38 of the 2012 Labor Law, there are an additional.3 cases of legal unilateral termination by employees. The employee’s voluntary resignation for five consecutive days without a justifiable reason, reaching retirement age, or providing dishonest information affecting the hiring process is considered legal in these cases.
In cases where the employer has the right to unilaterally terminate the labor contract,.the employee must consistently fail to complete assigned tasks, with the criteria determined.by the employer’s evaluation system. While the employer issues the evaluation system, consultation with the employee’s representative organization is required in locations where such representation exists.
3. Notice Periods for Contract Termination:
3.1. Cases Requiring Advance Notice:
In compliance with Articles 35 and 36 of the 2019 Labor Code, the notice period to terminate a labor contract varies based on the type of contract and the reason for termination:
- Indefinite-term contracts require a notice period of at least 45 days.
- Fixed-term contracts of 12 to less than 36 months require a notice period of at least 30 days.
- Fixed-term contracts of less than 12 months require a notice period of at least 3 days.
- Government Decree No. 145/2020/ND-CP specifically determines the notice period for certain specific industries or jobs:
At least 120 days for indefinite-term contracts or fixed-term contracts of 12 months or more.
At least one-fourth of the contract period for fixed-term contracts of less than 12 months.
- Contracts terminated during the probationary period do not require advance notice.
3.2. Cases Exempt from Advance Notice:
- According to Article 35(2) of the 2019 Labor Code, employees have the right to terminate.the contract without advance notice in the following cases:
Failure to provide the agreed-upon job or workplace conditions, except in other cases.
Failure to pay full or timely wages, except in other cases.
Employee is mistreated, physically assaulted, or subjected to humiliating words or actions affecting health,.dignity, or honor; or subjected to forced labor.
Sexual harassment in the workplace.
Pregnant employees resign due to adverse effects on the fetus.
Reaching retirement age, except in cases of other agreements.
The employee furnishes misleading information that impacts the employment contract.
- According to Article 36(3) of the 2019 Labor Code, employers are not.required to provide advance notice in the following cases:
Employee is absent from the workplace for 15 days after the temporary work suspension period.
Employee voluntarily resigns for 5 consecutive working days without a justifiable reason.
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