Jurisdiction over Termination of Employment and Retirement for Officials and Public Employees

Mr. Song inquired: Are the competent authorities, organizations, or units in the case of resignation due to two consecutive years of failing to complete tasks as stipulated in points a, b, c, clause 2, Article 4 of Decree 46/2010/ND-CP at the same level? Are officials and employees working at the Provincial Cooperative Union, who are not officials, subject to the application of Decree 46/2010/ND-CP? Does the Provincial Cooperative Union have the authority to notify of resignation or retirement for staff and public employees of the rank of principal specialist and below within the Provincial Cooperative Union?

Regarding this matter, the Lang Son Provincial Department of Home Affairs responds as follows:

Termination of Employment Contracts According to Management Decentralization

Clause 2, Article 4 of Decree 46/2010/ND-CP stipulates:

"a) Within 30 days from the date of the official classification result, the competent authority, organization, or unit shall notify the official in writing about the decision on the resignation, except as provided in clause 4, Article 59 of the Law on Officials and Public Employees;

b) Within 30 days from the date of the written notification, the competent authority, organization, or unit shall issue the decision on the resignation."

According to the aforementioned regulations, the authorities, organizations, and units notifying the decision on resignation and those issuing the resignation decision are determined based on management decentralization.

For public service providers, point a, clause 1, Article 29 of the Law on Public Employees stipulates:

"1. Public service units may unilaterally terminate employment contracts with public employees in the following cases:

a) The public employee is classified as not completing tasks for two consecutive years."

However, the process for terminating employment contracts with public employees who are classified as not completing tasks for two consecutive years has no specific guiding document to date. Therefore, the termination of employment contracts continues to follow management decentralization.

Clause 2, Article 4 of Decree 46/2010/ND-CP does not have a point c as mentioned in Mr. Hoang Van Song's inquiry.

Authority to Notify of Resignation or Retirement When Authorized

Clause 3, Article 12 of Decree 46/2010/ND-CP stipulates that individuals mobilized or assigned by the Communist Party, State, and those recruited or appointed according to the allocated staffing quotas to work in socio-political organizations and socio-professional organizations are subject to the application of this Decree.

According to these regulations, those recruited or appointed according to the assigned staffing quotas to work at the Provincial Cooperative Union are subject to the application of Decree 46/2010/ND-CP.

Point b, clause 2, Article 19 of Decision 25/2008/QD-UBND dated October 31, 2008, by the Lang Son Provincial People's Committee stipulates the authority of the Director of the Department of Home Affairs: "Appointing to ranks, salary arrangements for officials and public employees equivalent to or below the rank of specialist, salary increases, extra seniority allowances, mobilization, resignation, and retirement for officials and public employees of the rank of principal specialist and below within the province’s associations."

Clause 4, Article 19 of Decision 25/2008/QD-UBND stipulates the authority of the provincial association's head: "Arrange, allocate, and use officials and public employees as per regulations; Evaluate, assess; Implement policies for officials and public employees; Statistics, reporting on the management and use of officials and public employees; Establish, manage, and supplement the dossiers of officials and public employees following the guidance of competent authorities."

Thus, the Director of the Department of Home Affairs has the authority to notify and decide on the resignation of officials and public employees of the rank of principal specialist and below within the provincial association. However, the notification of resignation or retirement can be authorized by the Director of the Department of Home Affairs to the head of the association, following a written request from the association regarding cases of resignation or retirement.

According to the e-newspaper of the Government of Vietnam

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