Vietnam: Is it possible to unilaterally terminate the employment contract in case an employee has received treatment for a period of 15 consecutive months, but his/her health has not yet recovered?
- What are the regulations on employment contracts in Vietnam?
- In what cases do employers in Vietnam have the right to unilaterally terminate employment contracts?
- Is it possible to unilaterally terminate the employment contract in case an employee in Vietnam has received treatment for a period of 15 consecutive months, but his/her health has not yet recovered?
What are the regulations on employment contracts in Vietnam?
Pursuant to Article 13 of the Labor Code 2019 as follows:
- An employment contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations.
A document with a different name is also considered an employment contract if it contains the agreement on the paid job, salary, management and supervision of a party.
- Before recruiting an employee, the employer shall enter into an employment contract with such employee.
In what cases do employers in Vietnam have the right to unilaterally terminate employment contracts?
Pursuant to Article 36 of the Labor Code 2019 as follows:
- An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:
+ The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);
+ The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.
Upon recovery, the employer may consider concluding another employment contract with the employee;
+ In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;
+ The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;
+ The employee reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties;
+ The employee is not present at work without acceptable excuses for at least 05 consecutive working days;
+ The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labor Code in a manner that affects the recruitment.
- When unilaterally terminating the employment contract in any of the cases specified in Point a, b, c, dd and g Clause 1 of this Article, the employer shall inform the employer in advance:
+ 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 the case of an employment contract with a fixed term of less than 12 months and in the cases stipulated in Point b Clause 1 of this Article;
+ The notice period in certain fields and jobs shall be specified by the government.
- When unilaterally terminating the employment contract in the cases mentioned in Point d and Point e Clause 1 of this Article, the employer is not required to inform the employee in advance.
Is it possible to unilaterally terminate the employment contract in case an employee in Vietnam has received treatment for a period of 15 consecutive months, but his/her health has not yet recovered?
Pursuant to Article 37 of the Labor Code 2019, the employer is not allowed to unilaterally terminate the employment contract in the following cases:
- Cases in which an employer is prohibited from unilaterally terminating an employment contract
- The employee is suffering from an illness or work accident, occupational disease and is being treated or nursed under the decision of a competent health institution, except for the cases where the employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months
- The employee is on annual leave, personal leave, or any other types of leave permitted by the employer.
- The employee is pregnant, on maternity leave or raising a child under 12 months of age.
Thus, for an employee working under an indefinite-term employment contract who is sick or remains unable to work after having received treatment for a period of 15 consecutive months, the employer has the right to unilaterally terminate the employment contract.
Accordingly, when unilaterally terminating an employment contract, the employer must notify the employee at least 45 days in advance for an indefinite-term employment contract as prescribed.
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