Termination of Employment for 5 Unjustified Absences in a Month

1. Expiration of the labor contract.

2. Completion of the work according to the labor contract.

3. Mutual agreement between both parties to terminate the labor contract.

4. The employee meets the eligibility requirements for social insurance contributions and age for retirement benefits as prescribed.

5. The employee is sentenced to imprisonment, death, or prohibited from performing the work specified in the labor contract according to a legally effective verdict or decision of the court.

6. The employee dies, is declared by the court as lacking legal capacity, missing, or deceased.

7. The employer, if an individual, dies, is declared by the court as lacking legal capacity, missing, or deceased; the employer, if not an individual, ceases operations.

8. The employee is subject to disciplinary dismissal as prescribed in Clause 3, Article 125 of this Code.

9. The employee unilaterally terminates the labor contract as prescribed in Article 37 of this Code.

10. The employer unilaterally terminates the labor contract as prescribed in Article 38 of this Code; the employer dismisses the employee due to changes in the structure, technology, or for economic reasons, or due to the merger, consolidation, division, or separation of the business, cooperative.

Therefore, with the above regulations, the termination of a labor contract should first be resolved through negotiation to mutually agree on the termination of the labor contract. If negotiation is not possible, the company may consider unilaterally terminating the labor contract with the employee or applying disciplinary dismissal if the employee's actual behavior falls under cases of unilateral termination of the labor contract or dismissal.

To be specific: according to point a, Clause 1, Article 38 of the Labor Code 2012, the employer has the right to unilaterally terminate the labor contract if the employee frequently fails to complete the work according to the labor contract.

According to Clause 1, Article 12 of Decree 05/2015/ND-CP, which provides detailed regulations and guidance for implementing certain contents of the Labor Code, the employer must specify the criteria for evaluating job performance in the company's regulations as a basis for assessing whether the employee frequently fails to complete the work according to the labor contract (The job performance evaluation criteria are issued by the employer after consulting the collective labor representative organization at the establishment).

Thus, for employees who frequently take leave, sometimes during work hours, sometimes do not come to work without reporting, the company needs to evaluate the job performance of such employees according to the company's regulations and evaluation criteria to consider unilaterally terminating the labor contract.

According to Clause 2, Article 38 of the Labor Code, when unilaterally terminating a labor contract, the employer must notify the employee at least 45 days in advance for an indefinite-term labor contract; at least 30 days in advance for a definite-term labor contract; at least 3 working days in advance for a seasonal labor contract or a certain job-specific labor contract with a term of less than 12 months.

Additionally, according to Clause 3, Article 126 of the Labor Code 2012, if the employee voluntarily leaves work for 5 cumulative days in a month or 20 cumulative days in a year without a valid reason, the employer may apply the form of disciplinary dismissal.

Therefore, depending on the employee's frequent absences, job performance as determined by the company's regulations, and the above-mentioned regulations, the company can either negotiate to terminate the labor contract with the employee, unilaterally terminate the labor contract, or apply the form of disciplinary dismissal.

In cases where there is a basis for unilaterally terminating the labor contract or applying the form of disciplinary dismissal, the company needs to follow the correct procedures and company's internal regulations.

According to VNexpress

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