What to Do When Terminated Without a Labor Contract?

Lawyer Pham Thi Thuy Kieu - Law Office No. 6, Hanoi Bar Association responds: According to the provisions of the Labor Code 2012, within 30 days from the date the employment contract expires, the two parties must sign a new employment contract; if a new employment contract is not signed, the concluded contract, a fixed-term contract (from 12 months to 36 months), shall become an indefinite-term employment contract.

The company has the right to lay off employees for reasons of structural change, technology change, or economic reasons, but must comply with the provisions of Article 44 of the Labor Code 2012:

1. In the case of structural, technological changes that affect the employment of many workers, the employer is responsible for developing and implementing a labor utilization plan as stipulated in Article 46 of this Code; if there are new job positions, priority should be given to retraining employees for continued employment.

If the employer cannot provide new employment and has to lay off employees, they must pay severance allowance according to the provisions of Article 49 of this Code.

2. In the case of economic reasons where many workers are at risk of losing their jobs, the employer must develop and implement a labor utilization plan as stipulated in Article 46 of this Code.

If the employer cannot provide employment and has to lay off employees, they must pay severance allowance according to the provisions of Article 49 of this Code.

3. The layoff of multiple employees as stipulated in this Article can only be carried out after consulting with the grassroots labor collective representative organization and notifying the provincial labor management agency 30 days in advance.

If the company dismisses you not for the reasons above, it falls under the case of the company unilaterally terminating the employment contract.

The company has the right to unilaterally terminate the employment contract in the cases stipulated in Article 38 of the Labor Code as follows:

1. The employer has the right to unilaterally terminate the employment contract in the following cases:

a) The employee frequently fails to complete the work according to the employment contract;

b) The employee is sick or has an accident and has been treated continuously for 12 months for those with an indefinite-term employment contract, continuously for 6 months for those with a fixed-term employment contract, and over half of the contract term for those with seasonal or specific job contracts of less than 12 months without recovering their ability to work.

When the health of the employee is restored, they shall be considered for continued employment contract conclusion;

c) Due to natural disasters, fires, or other force majeure reasons as prescribed by law, and the employer has sought all remedies but still has to downsize production and reduce jobs;

d) The employee is absent from the workplace after the period stipulated in Article 33 of this Code.

2. When unilaterally terminating the employment contract, the employer must notify the employee in advance:

a) At least 45 days for an indefinite-term employment contract;

b) At least 30 days for a fixed-term employment contract;

c) At least 3 working days for the cases stipulated in point b, clause 1 of this Article and for seasonal or specific job contracts of less than 12 months.

Therefore, you should check whether you fall under the cases where the company has the right to terminate the employment contract. If not, then the company has unilaterally and unlawfully terminated the employment contract.

Article 42 of the Labor Code stipulates: Obligations of the employer when unilaterally and unlawfully terminating the employment contract

1. Must reinstate the employee to the previously agreed employment position and pay wages, social insurance, and health insurance for the days the employee was not allowed to work, plus at least 2 months' wages according to the employment contract.

2. In case the employee does not want to return to work, besides the compensation specified in clause 1 of this Article, the employer must pay severance allowance as stipulated in Article 48 of this Code.

3. In case the employer does not want to reinstate the employee and the employee agrees, besides the compensation specified in clause 1 of this Article and severance allowance as stipulated in Article 48 of this Code, the two parties shall agree on an additional compensation amount, but it must be at least 2 months' wages according to the employment contract to terminate the employment contract.

4. In cases where there is no position or job previously agreed upon in the employment contract but the employee still wants to work, besides the compensation specified in clause 1 of this Article, the two parties shall negotiate to modify or supplement the employment contract.

5. In cases of violations of the advance notice period, compensation to the employee shall be a sum equivalent to the wages for the days the notice period was not observed.

Thus, you need to request the company to clearly state the reason for your dismissal, so you know your corresponding rights and request the company to resolve them accordingly.

According to Labor Newspaper

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