Currently, many businesses and employees are interested in unilaterally terminating the labor contract and paying compensation when the labor contract is terminated for the employee. Understanding that request, NPLaw sends to its Customers issues related to the unilateral termination of the Labor Contract and compensation upon termination of the Labor Contract in accordance with the laws of Vietnam.
What is illegal unilateral termination of the Contract?
Right to unilaterally terminate the labor contract of the employee
Pursuant to the provisions of Article 35 of the Labor Code 2019, the employee has the right to unilaterally terminate the labor contract in the following cases:
The employee has the right to unilaterally terminate the labor contract but must notify the employer in advance as follows:
- At least 45 days if working under an indefinite term labor contract;
- At least 30 days if working under a definite-term labor contract with a term from 12 months to 36 months;
- At least 03 working days if working under a definite-term labor contract with a term of less than 12 months;
- The employee has the right to unilaterally terminate the labor contract without prior notice in the following cases:
- Not being assigned to the right job, working location or not guaranteed working conditions as agreed, except for the case specified in Article 29 of the Labor Code 2019;
- Not being paid in full or on time, except for the case specified in Clause 4, Article 97 of the Labor Code 2019;
- Being abused, beaten by the employer or having insulting words or acts, acts affecting health, dignity and honor; forced labor;
- Being sexually harassed at work;
- Pregnant female employees must take leave as prescribed in Clause 1, Article 138 of the Labor Code 2019;
- Having reached the retirement age as prescribed in Article 169 of the Labor Code 2019, unless otherwise agreed by the parties;
- The employer provides untruthful information as prescribed in Clause 1, Article 16 of the Labor Code 2019 affecting the performance of the labor contract.Obligations of the employee when unilaterally terminating the labor contract illegally
Unilaterally terminate the employer's labor contract
Pursuant to Article 36 of the 2012 Labor Code, the employer has the right to unilaterally terminate the labor contract in the following cases:
- The employee who regularly fails to complete the work according to the labor contract is determined according to the criteria for assessing the level of work completion in the employer's regulations. Regulations on assessment of job completion are promulgated by the employer, but must consult the employee representative organization at the grassroots level in the case of a representative organization of employees at the grassroots level;
- An employee suffering from an illness or accident has received treatment for 12 consecutive months, for employees working under an indefinite term labor contract, or has received treatment for 6 consecutive months, for employees working under a labor contract; definite-term labor contract with a term from 12 months to 36 months or more than half the term of the labor contract, for those working under a definite-term labor contract with a term of less than 12 months, but the working capacity has not yet been restored. dress.
When the worker's health recovers, the employer will consider continuing to enter into a labor contract with the employee;
- Due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation or downsizing of production and business at the request of competent state agencies, but the employer has sought all remedial measures. but still forced to reduce the workplace;
- The employee is not present at the workplace after the time limit specified in Article 31 of the Labor Code 2019;
- The employee reaches the retirement age as prescribed in Article 169 of the Labor Code 2019, unless otherwise agreed;
- The employee voluntarily quits his job without a legitimate reason for 05 consecutive working days or more;
- The employee provides dishonest information as prescribed in Clause 2, Article 16 of the Labor Code 2019 when entering into a labor contract, affecting the recruitment of employees.
When unilaterally terminating the labor contract in the cases specified in items a, b, c, e and g above, the employer must notify the employee in advance as follows:
- At least 45 days for an indefinite term labor contract;
- At least 30 days for a definite-term labor contract with a term of between 12 and 36 months;
- At least 03 working days for a definite-term labor contract with a term of less than 12 months and for the case specified in item b;
When unilaterally terminating the labor contract specified in items d and f above, the employer is not required to notify the employee in advance.
Where the employer is not allowed to exercise the right to unilaterally terminate the labor contract
Pursuant to Article 37 of the 2019 Labor Code, the employer may not exercise the right to unilaterally terminate the labor contract in the following cases:
- The employee is sick or has an accident or occupational disease who is being treated or nursed under the direction of a competent medical examination and treatment establishment, except for the case specified at Point b, Clause 1, Article 36 of the Code. labor 2019.
- Employees are taking annual leave, taking separate leave and other cases of leave agreed by the employer.
- Pregnant female employees; the employee is on maternity leave or raising a child under 12 months old.
Concept of illegal unilateral termination of labor contract
Pursuant to Article 39 of the 2019 Labor Code, Illegal unilateral termination of a labor contract is a case where the termination of a labor contract is not in accordance with the provisions of Articles 35, 36 and 37 of the 2019 Labor Code, meaning: is not in accordance with the provisions of sections 1.2, 1.2, 1.3 of this article.
Legal consequences of unilaterally terminating the labor contract illegally
Obligations of the employer when unilaterally terminating the labor contract illegally
Pursuant to the provisions of Article 41 of the Labor Code 2019, the employer, when unilaterally terminating the labor contract, must perform the following obligations:
1/ To accept employees back to work under signed labor contracts; must pay wages, pay social insurance, health insurance, unemployment insurance in the days when the employee is not allowed to work and must pay the employee an additional amount equal to at least 02 months' salary according to the contract. labor co.
After being reinstated to work, the employee shall refund to the employer the severance allowance or job loss allowance if received from the employer.
In case there is no longer a position or job that has been signed in the labor contract but the employee still wants to work, the two parties shall agree to amend and supplement the labor contract.
In case of violation of the provisions on the notice period specified in Clause 2, Article 36 of the Labor Code 2019, an amount corresponding to the salary under the labor contract must be paid in the days without prior notice.
2/ In case the employee does not want to continue working, in addition to the amount to be paid specified in Section a of this Article, the employer must pay the severance allowance as prescribed in Article 46 of the Labor Code 2019 to terminate the employment. terminate the employment contract.
3/ In case the employer does not want to take back the employee and the employee agrees, in addition to the amount of money the employer must pay as prescribed in Section a and the severance allowance specified in Article 46. of the Labor Code 2019, the two parties agree on an additional compensation for the employee, but at least equal to 2 months' salary according to the labor contract to terminate the labor contract.
Obligations of the employee when unilaterally terminating the labor contract illegally
According to the provisions of Article 40 of the Labor Code 2019, the employee, when unilaterally terminating the labor contract, must perform the following obligations:
- No severance pay.
- To compensate the employer for half a month's salary according to the labor contract and an amount corresponding to the salary under the labor contract in unannounced days.
- Must reimburse the employer for training costs specified in Article 62 of the Labor Code 2019.
Actual situation of illegal termination of labor contract
Practice shows that the solution commonly applied when terminating a labor contract is an agreement between the employee and the employer. However, there are also many cases where the employer wants to terminate the labor contract with the employee but does not understand the provisions of the law, leading to the unilateral termination of the labor contract illegally. From there, the Employee will have a basis to sue the employer to claim compensation for damage.
The above contents will partly help customers understand more about unilateral termination of the labor contract and compensation for termination of the labor contract in accordance with the law of Vietnam. In fact, labor contract disputes often occur at the company and unilaterally terminating the labor contract and resolving labor disputes in accordance with regulations is not simple, legal risks are high. , takes a lot of time and effort. Therefore, you should find a reputable law firm to help you solve the above legal problems, and we believe that we can do that for you. Please contact us for instructions as below:
