Can a Public Employee Unilaterally Terminate a Contract?

Because of family circumstances, my husband died suddenly due to a traffic accident in 2010 while on a business trip, resulting in the family's serious economic decline. The house, which was subjected to enforcement, was not enough to pay off my husband's debts. With immense grief, mental collapse, and exceedingly difficult economic conditions, I requested to leave my job at the hospital, relocating to Ho Chi Minh City with the help of friends to have the means to raise my child (then in Grade 2).

On December 26, 2013, I submitted a prior notice requesting to unilaterally terminate the employment contract after 45 days. 20 days later, the hospital responded that there was no replacement available and requested that I continue working. I continued to send requests to resolve the termination of my employment after six consecutive months. When a doctor replaced me in my department, I handed over study materials and agency property. In May 2014, the agency agreed to resolve the remaining annual leave of 2013 for me, and on June 1, 2014, I officially left the job. I also submitted a report to the hospital's organizational department, requesting to continue resolving my resignation application before my final departure. Therefore, may I ask, as a public employee with an indefinite-term employment contract, do I have the right to terminate the employment contract with a state hospital? Do I receive any benefits after resignation?

([email protected])

Response:

Firstly: Regarding the right to unilaterally terminate the employment contract

According to the information you provided, you signed an indefinite-term employment contract. According to Clause 4, Article 29 of the Law on Public Employees 2010: "4. Public employees working under indefinite-term employment contracts have the right to unilaterally terminate the contract but must notify in writing to the head of the public service provider at least 45 days in advance; in cases where the public employee is sick or has had an accident treated for 06 consecutive months, they must give at least 3 days' notice."

Point b Clause 1, Article 38 of Decree 29/2012/ND-CP: “b) Public employees may unilaterally terminate their working contracts as stipulated in Clauses 4 and 5, Article 29 of the Law on Public Employees.”

Public employees working under indefinite-term employment contracts have the right to unilaterally terminate their working contracts but must adhere to a 45-working-day notice period and are entitled to full benefits in conformity with policies.

Secondly: Regarding benefits after resignation

Article 45 of the Law on Public Employees 2010 stipulates: "1. When terminating the employment contract, public employees are entitled to severance benefits, unemployment benefits, or other sources of unemployment insurance as stipulated by labor law and social insurance law, except for cases specified in Clause 2 of this Article.

2. Public employees are not entitled to severance benefits if they fall into one of the following cases:

a) Being dismissed;

b) Unilaterally terminating the working contract in violation of Clauses 4, 5, and 6, Article 29 of this Law;

c) Terminating the working contract as stipulated in Clause 5, Article 28 of this Law."

Clause 1 Point c and Clause 2, Article 39 of Decree 29/2012/ND-CP stipulates:

"1. Severance allowance for the working time of public employees from December 31, 2008, and earlier is calculated as follows:

c) In the case of public employees recruited before July 1, 2003, the working time for severance allowance is the total working time (aggregated) from the date the public employee was recruited up to December 31, 2008.

2. Severance allowance for the public employee's working time from January 1, 2009, to present shall be implemented following the regulations on unemployment insurance."

For the period from January 1, 2009, to present, you shall receive benefits according to the regulations on unemployment insurance. For the working period before January 1, 2009, you shall receive severance benefits as stipulated by the Law on Public Employees 2010 and Decree 29/2012/ND-CP, provided you do not fall into the cases stipulated in Clause 2, Article 45 of the Law on Public Employees 2010.

Lawyer Pham Thi Bich Hao

(Duc An Law Firm Co. Ltd - Thanh Xuan - Hanoi)

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE