Vietnam: Does an employer have the right to unilaterally terminates the employment contract without prior notice if the employee repeatedly fails to perform his/her work?
Vietnam: Does an employer have the right to unilaterally terminates the employment contract without prior notice if the employee repeatedly fails to perform his/her work?
According to Article 36 of the Labor Code 2019, the regulations regarding the right of an employer to unilaterally terminates the employment contract are as follows:
The right of an employer to unilaterally terminates the employment contract
1. An employer has the right to unilaterally terminates the employment contract in the following cases:
a) The employee frequently fails to complete the tasks as specified in the employment contract based on the employer's performance evaluation criteria. These evaluation criteria are established by the employer but must consult with the representative organization of employees at the workplace, where such an organization exists;
b) The employee suffers from an illness or accident and has received continuous treatment for 12 months for an indefinite-term employment contract, or for 6 months for a definite-term employment contract with a period from 12 months to 36 months, or more than half of the contract term for a definite-term employment contract with a period less than 12 months, and is not yet able to return to work.
When the employee's health recovers, the employer shall consider continuing to engage the employment contract with the employee;
c) Due to natural disasters, fire, dangerous epidemics, enemy sabotage, or relocation, downsizing of production and business according to the request of competent state authorities, if the employer has already taken all possible remedial measures but still has to reduce the number of positions;
d) The employee is not present at the workplace after the time limit specified in Article 31 of this Code;
dd) The employee has reached the retirement age as stipulated in Article 169 of this Code, unless otherwise agreed;
e) The employee voluntarily quits without a legitimate reason for 5 or more consecutive working days;
g) The employee provides false information as stipulated in Clause 2, Article 16 of this Code during the establishment of the employment contract, affecting the recruitment of the employee.
2. When unilaterally terminating a employment contract in cases specified in Points a, b, c, đ and g, Clause 1 of this Article, the employer must give notice to the employee as follows:
a) At least 45 days for an indefinite-term employment contract;
b) At least 30 days for a definite-term employment contract with a period from 12 months to 36 months;
c) At least 3 working days for a definite-term employment contract with a period less than 12 months and in the case specified in Point b, Clause 1 of this Article;
d) For specific industries, professions, and jobs, the notice period is implemented according to the Government of Vietnam's regulations.
3. When unilaterally terminating a employment contract specified in Points d and e, Clause 1 of this Article, the employer is not required to give notice to the employee.
Therefore, according to the regulations, if the employee frequently fails to complete assigned tasks, the employer has the right to unilaterally terminate the employment contract but must give notice.
Vietnam: Does an employer have the right to unilaterally terminates the employment contract without prior notice if the employee repeatedly fails to perform his/her work? (Image from the Internet)
What are the regulations on illegal unilateral termination of employment contracts in Vietnam?
According to Article 39 of the Labor Code 2019, the regulations on Illegal unilateral termination of employment contracts are as follows:
Illegal unilateral termination of employment contracts
Unilateral termination of a employment contract is unlawful if it falls outside the provisions of Articles 35, 36, and 37 of this Code.
Thus, Illegal unilateral termination of employment contracts occurs if it is not conformable to Articles 35, 36, and 37 of this Code.
What are the obligations of an employee upon illegal unilateral termination of the employment contract in Vietnam?
Based on Article 41 of the Labor Code 2019:
Obligations of the employer upon illegal unilateral termination of the employment contract
1. The employer must reinstate the employee to their former position as per the agreed employment contract; pay the salary, and cover social insurance, health insurance, and unemployment insurance for the days the employee was not allowed to work, and additionally pay the employee an amount of no less than 2 months' salary as per the employment contract.
Upon being reinstated, the employee must return to the employer any severance or job loss allowance if these were received from the employer.
If the position or work stated in the employment contract is no longer available and the employee still wishes to work, both parties shall negotiate to amend and supplement the employment contract.
In cases of non-compliance with the notice period stipulated in Clause 2, Article 36 of this Code, compensation equal to the salary of the unprovided notice days must be paid.
2. If the employee does not wish to return to work, besides the payment stipulated in Clause 1 of this Article, the employer must also pay the employee severance allowance as prescribed in Article 46 of this Code to terminate the employment contract.
3. In cases where the employer does not wish to reinstate the employee and the employee agrees, besides the payment stipulated in Clause 1 of this Article and the severance allowance according to Article 46 of this Code, both parties shall agree on additional compensation for the employee but not less than 2 months’ salary as per the employment contract to terminate the employment contract.
Therefore, the obligations of the employer upon illegal unilateral termination of the employment contract are as stated above.
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