Public Employees Unilaterally Terminating Contracts

1. How long in advance do I have to submit a resignation letter?

2. Will my insurance record be finalized so that when I return, I can continue participating in insurance? Will the years I have contributed to insurance be preserved? When I return, in what form can I continue contributing to insurance?

3. Will I receive any compensation when I leave my job? [email protected]

Response:

- Right to Unilaterally Terminate the Employment Contract:

If your contract is a fixed-term employment contract (HDLVXDTH), you need to meet the conditions for termination and the termination notice period as stipulated in Clauses 5 and 6, Article 29 of the 2010 Public Employees Law (LVC): Public employees working under an HDLVXDTH have the right to unilaterally terminate the contract in the following cases: a) Not being assigned to the correct job position, work location, or not being ensured the working conditions agreed upon in the employment contract; b) Not being paid fully or on time according to the employment contract; c) Being mistreated; forced labor; d) You or your family have truly difficult circumstances that cannot continue to perform the contract; dd) Female public employee is pregnant and must resign according to the medical establishment's directive; e) Public employee is ill or has an accident that has been treated for 03 continuous months but has not fully recovered for work.

Public employees must notify in writing about the unilateral termination of the employment contract to the head of the public service provider at least 03 days in advance for cases stipulated in points a, b, c, dd, and e, Clause 5 of this Article; at least 30 days in advance for the case stipulated in point d of Clause 5 of this Article.

Based on the information you provided, if you are resigning due to you or your family having genuinely difficult circumstances that cannot continue the contract, the notice period is 30 days.

If your contract is an indefinite-term contract, you must comply with Clause 4, Article 29 of the 2010 Public Employees Law, which states: “Public employees working under an indefinite-term employment contract 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.

- When resigning according to the regulation on content and notice period, you will receive severance allowance:

If you unilaterally terminate the contract conformably with Clauses 4 and 5, Article 29 of the Public Employees Law, you will be entitled to severance allowance according to Clause 1, Article 45 of the 2010 Public Employees Law: “When the employment contract is terminated, public employees are entitled to severance allowance, job loss allowance, or unemployment insurance benefits according to the labor law and social insurance law, except for cases stipulated in Clause 2 of this Article.”

Thus, the policies you are entitled to upon resigning will be based on the 2012 Labor Code: Regarding the level of severance allowance in Article 48, Labor Code,

“1. When the labor contract is terminated according to the stipulations in Clauses 1, 2, 3, 5, 6, 7, 9, and 10 of Article 36 of this Code, the employer is responsible for paying severance allowance to employees who have regularly worked for 12 months or more, each year of work is entitled to an allowance equal to half a month’s wage.

- Unemployment allowance: Employees are entitled to unemployment allowance if they meet the conditions stipulated in Article 81 of the 2006 Social Insurance Law (BHXH): 1. Have paid unemployment insurance for twelve months or more within the twenty-four months before unemployment; 2. Have registered unemployment with the social insurance organization; 3. Have not found a job within fifteen days from the date of unemployment registration according to Clause 2 of this Article.”

- Regarding finalizing the insurance record and preserving social insurance contribution time:

The employer is responsible for returning the social insurance record to the employee when terminating the labor contract. The social insurance agency will finalize the social insurance record when ensuring the documents stipulated in Article 19 attached to Decision 1111/QD-BHXH dated October 25, 2011.

Article 57 of the 2006 Social Insurance Law stipulates: Employees who resign and have not met the conditions to receive a pension or have not received the lump-sum social insurance benefit are entitled to preserve the social insurance contribution time.

In your case, after resigning and finalizing compulsory social insurance, you can choose from the following two options: First, preserve the time of compulsory social insurance contribution so that when you return to work under a contract policy or recruitment policy, you continue to participate in compulsory social insurance; second, choose to participate in voluntary social insurance.

Lawyer Pham Thi Bich Hao (Duc An Law Co., Ltd.)

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