Vietnam: If I have applied for resignation, can I withdraw the application? How does an employee terminate an employment contract in accordance with the law?
If I have applied for resignation, can I withdraw the application?
According to the provisions of Article 35 of the 2019 Labor Code of Vietnam, an employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employer in advance within the prescribed time limit; or shall have the right to unilaterally terminate the employment contract without prior notice in Clause 2, Article 35 of the 2019 Labor Code of Vietnam.
According to that, the prior notice period is specified in Clause 1, Article 35 of the 2019 Labor Code of Vietnam and Article 7 of Decree No. 145/2020/ND-CP, as follows:
- at least 45 days in case of an indefinite-term employment contract;
- at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
- at least 03 working days in case of an employment contract with a fixed term of under 12 months;
In addition, in case employees do special works and lines of business such as aircrew members; aircraft maintenance technicians, aviation repairmen; flight coordinators; enterprise managers, etc., a prior notice shall be provided:
- At least 120 days before the termination date if the employment contract has an indefinite term or a term of at least 12 months;
- At least one fourth (1/4) of the employment contract duration if the duration is less than 12 months.
On the other hand, Article 38 of the 2019 Labor Code of Vietnam also allows the parties to withdraw the unilateral termination of the employment contract.
Specifically, either party may withdraw the unilateral termination of an employment contract at any time prior to the expiry of the notice period by a written notification, provided that the withdrawal is agreed by the other party.
Thus, the employee may apply or notify the employer in writing of the cancellation or withdrawal of the resignation application, but only within the prior notice period (corresponding to the type of employment contract) and approved by the employer.
In case the employer does not agree, the employment contract will terminate at the due date that the employee has proposed in the resignation application.
Vietnam: If I have applied for resignation, can I withdraw the application? How does an employee terminate an employment contract in accordance with the law?
What are the cases of termination of employment contracts in Vietnam?
Pursuant to Article 34 of the 2019 Labor Code of Vietnam, the employment contract will be terminated in the following cases:
- The employment contract expires, except for the case specified in Clause 4 Article 177 of this Code.
- The tasks stated in the employment contract have been completed.
- Both parties agree to terminate the employment contract.
- The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in Clause 5 Article 328 of the Criminal Procedure Code, capital punishment or is prohibited from performing the work stated in the employment contract by an effective verdict or judgment of the court.
- The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.
- The employee dies; is declared by the court as a legally incapacitated person, missing or dead.
- The employer that is a natural person dies; is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.
- The employee is dismissed for disciplinary reasons.
- The employee unilaterally terminates the employment contract in accordance with Article 35 of this Code.
- The employer unilaterally terminates the employment contract in accordance with Article 36 of this Code.
- The employer allows the employee to resigns in accordance with Article 42 and Article 43 of this Code.
- The work permit or a foreign employee expires according to Article 156 of this Labor Code.
- The employee fails to perform his/her tasks during the probationary period under the employment contract or gives up the probation.
How does an employee terminate an employment contract in accordance with the law?
Pursuant to Article 39 of the 2019 Labor Code of Vietnam, the employee is entitled to unilaterally terminate the employment contract. Therefore, in order to avoid legal risks, the employee must not unilaterally terminate the employment contract illegally, specifically as follows:
Illegal unilateral termination of employment contracts in Vietnam
The unilateral termination of an employment contract will be illegal if it does not comply with regulations of Article 35, 36 and 37 of this Labor Code.
Referring to Article 35 of the 2019 Labor Code of Vietnam stipulating the right of an employee to unilaterally terminate the employment contract, as follows:
The right of an employee to unilaterally terminates the employment contract
1. An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employer in advance:
a) at least 45 days in case of an indefinite-term employment contract;
b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
c) at least 03 working days in case of an employment contract with a fixed term of under 12 months;
d) The notice period in certain fields and jobs shall be specified by the government.
2. An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:
a) is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labor Code;
b) is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.
c) is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity or honor; is forced to work against his/her will;
d) is sexually harassed in the workplace;
dd) is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labor Code.
e) reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or
g) finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.
Thus, employees who wish to quit their jobs must comply with the law on unilaterally terminating the employment contract.
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