Is the employer entitled to dismiss an employee who fails to go to work for a total period of 05 days? In this case, does the company have the right to unilaterally terminate the employment contract in Vietnam??

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Vietnam: Is the employer entitled to dismiss an employee who fails to go to work for a total period of 05 days?

According to Article 125 of the 2019 Labor Code regarding the application of dismissal as a disciplinary measure as follows:

Application of Dismissal as a Disciplinary Measure

The dismissal as a disciplinary measure is applied by the employer in the following cases:

1. The employee commits theft, embezzlement, gambling, intentionally causes injury, uses drugs at the workplace;

2. The employee discloses business secrets, technological secrets, infringes on intellectual property rights of the employer, causes serious damage or threatens to cause particularly serious damage to the employer's assets, interests, or engages in sexual harassment at the workplace as provided in the internal labor regulations;

3. The employee, being disciplined with prolonged wage raise suspension or demotion, repeats the offense during the period when the disciplinary measures have not been erased. A repeated offense is a case where the employee repeats the same violation that has been disciplined without erasure according to Article 126 of this Code;

4. The employee voluntarily leaves work for 05 cumulative days within a 30-day period or 20 cumulative days within a 365-day period from the first day of voluntary leave without a legitimate reason.

Legitimate reasons may include natural disasters, fires, personal or family illness with certification from a competent medical facility, and other cases specified in the internal labor regulations.

Thus, according to regulations, an employee who voluntarily leaves work for 05 cumulative days within a 30-day period from the first day of voluntary leave without a legitimate reason may be subjected to dismissal as a disciplinary measure. In cases of cumulative 05-day leave within a 365-day period from the first day of voluntary leave without a legitimate reason, dismissal as a disciplinary measure cannot be applied.

Is the employer entitled to dismiss an employee who fails to go to work for a total period of 05 days? In this case, does the employer have the right to unilaterally terminate the employment contract in Vietnam? (Image from the Internet)

In this case, does the employer have the right to unilaterally terminate the employment contract in Vietnam?

According to Clause 1, Article 36 of the 2019 Labor Code regarding the employer's right to unilaterally terminate the employment contract as follows:

Employer's Right to Unilaterally Terminate the employment contract

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

a) The employee frequently fails to complete work according to the employment contract as determined by the employee's performance evaluation criteria in the employer's regulations. The performance evaluation criteria must be issued by the employer after consulting the representative organization of the employees at the establishment, where such an organization exists;

b) The employee suffers from illness or accident and has been treated for 12 consecutive months for those working under an indefinite-term employment contract or for 06 consecutive months for those working under a fixed-term employment contract with a term of 12 months to 36 months or for over half the term of the employment contract for those under a fixed-term employment contract with a term of less than 12 months but cannot recover their working ability. When the employee's health recovers, the employer shall consider re-entering the employment contract with the employee;

c) Due to natural disasters, fires, dangerous epidemics, enemy sabotage, or relocation, reduction of production or business at the request of a competent state authority, and the employer has tried all remedies but still must reduce jobs;

d) The employee is not present at the workplace after the time limit prescribed in Article 31 of this Code;

đ) The employee reaches retirement age as prescribed in Article 169 of this Code, unless otherwise agreed upon;

e) The employee voluntarily leaves work without a legitimate reason from 05 consecutive working days or more;

g) The employee provides untruthful information as prescribed in Clause 2, Article 16 of this Code when signing the employment contract, affecting the recruitment of employees.

Thus, according to the regulations, in the case where an employee voluntarily leaves work without a legitimate reason for 05 consecutive working days or more, the employer is entitled to unilaterally terminate the employment contract. Conversely, if the employee's leave is not consecutive, the employer is not entitled to unilaterally terminate the employment contract.

Is the employer required to notify the employee when unilaterally terminating the employment contract in Vietnam?

According to Clause 3, Article 36 of the 2019 Labor Code the regulation is as follows:

Employer's Right to Unilaterally Terminate the employment contract

...

3. When unilaterally terminating the employment contract as specified in Points d and e, Clause 1 of this Article, the employer is not required to notify the employee in advance.

Thus, when unilaterally terminating the employment contract as specified in Points d and e, Clause 1 of this Article, the employer is not required to notify the employee in advance.