Vietnam: In case employees work inefficiently, can the enterprise unilaterally terminate the contract?
- In case employees work inefficiently, can the enterprise unilaterally terminate the contract?
- Does the enterprise unilaterally terminate the employment contract with an employee due to inefficient work, does it need to inform the employee in advance?
- Are there any forms of handling violations against employees?
In case employees work inefficiently, can the enterprise unilaterally terminate the contract?
According to the provisions of Point a, Clause 1, Article 36 of the 2019 Labor Code of Vietnam as follows:
The right of an employer to unilaterally terminates the employment contract in Vietnam
1. An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:
a) 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);
b) 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;
c) 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;
d) The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;
dd) The employee reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties;
e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;
g) 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.
Thus, if the employee's inefficient work is that 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 employer is entitled to unilaterally terminate the employment contract.
Vietnam: In case employees work inefficiently, can the enterprise unilaterally terminate the contract? (Image from the Internet)
Does the enterprise unilaterally terminate the employment contract with an employee due to inefficient work, does it need to inform the employee in advance?
Pursuant to Clause 2, Article 36 of the 2019 Labor Code of Vietnam stipulating as follows:
The right of an employer to unilaterally terminates the employment contract in Vietnam
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2. 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 employee 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 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;
d) The notice period in certain fields and jobs shall be specified by the government.
Thus, depending on the type of employment contract signed by the employee with the employer to determine the time to unilaterally terminate the employment contract due to the employee's ineffective work as prescribed above.
The employer shall inform the employee 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.
Are there any forms of handling violations against employees?
According to Clause 2, Article 5 of the 2019 Labor Code of Vietnam, employees are obliged to implement the employment contract, collective bargaining agreement and other lawful agreements; obey internal labor regulations, the lawful management, administration and supervision by the employer
According to that, the employee is responsible for completing the work assigned by the employer. In case of failure to complete the work due to subjective error on the part of the employee, affecting the overall work performance, the employer can take disciplinary action against the employee.
Pursuant to Article 124 of the 2019 Labor Code of Vietnam and Article 125 of the 2019 Labor Code of Vietnam, an employer may discipline an employee with poor performance in one of the following forms:
- Reprimand.
- Extending the salary increase period: Deferment of pay rise for up to 6 months.
- Demotion: Apply to employees who are holding positions in the enterprise.
- Dismissal: applies in the following cases:
+ The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;
+ The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;
+ The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.
+ The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.
Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.
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