When will employees working under fixed-term contracts conclude indefinite-term employment contracts in Vietnam?
When will employees working under fixed-term contracts conclude indefinite-term employment contracts in Vietnam?
Article 33 of the Labor Code 2019 stipulates revisions to employment contracts as follows:
Revisions to employment contracts
1. During the performance of an employment contract, any party who wishes to revise the employment contract shall notify the other party of the revisions at least 03 working days in advance.
2. In case where an agreement is reached between the parties, the revisions shall be made by signing an annex to the employment contract or signing a new employment contract.
3. In case the two parties fail to reach an agreement on the revisions, they shall continue to perform the existing employment contract.
In addition, in Article 20 of the Labor Code 2019, indefinite-term contracts are as follows:
Types of employment contracts
1. An employment contract shall be concluded in one of the following types:
a) An indefinite-term employment contract is a contract in which the two parties neither fix the term nor the time of termination of the contract;
b) A fixed-term employment contract is a contract in which the two parties fix the term of the contract for a duration of up to 36 months from the date of its conclusion.
2. If an employee keeps working when an employment contract mentioned in Point b Clause 1 of this Article expires:
a) Within 30 days from the expiration date of the employment contract, both parties shall conclude a new employment contract. Before such a new employment contract is concluded, the parties’ rights, obligations and interests specified in the old employment contract shall remain effective;
b) If a new employment contract is not concluded after the 30-day period, the existing employment contract mentioned in Point b Clause 1 of this Article shall become an employment contract of indefinite term;
c) The parties may enter into 01 more fixed-term employment contract. If the employee keeps working upon expiration of this second fixed-term employment contract, the third employment contract shall be of indefinite term, except for employment contracts with directors of state-invested enterprises and the cases specified in Clause 1 Article 149, Clause 2 Article 151 and Clause 4 Article 177 of this Labor Code.
Thus, from the above regulations, employees signing a fixed-term contract can conclude an indefinite-term employment contract in the following cases:
- Both parties can agree to sign a new contract
- Within 30 days from the date the fixed-term employment contract ends, if a new employment contract is not concluded after the 30-day period, the fixed-term contract will become an employment contract of indefinite term.
- Or if the employee keeps working upon expiration of this second fixed-term employment contract, the third employment contract shall be of indefinite term.
When will employees working under fixed-term contracts conclude indefinite-term employment contracts in Vietnam?
Vietnam: Will the previous employment contracts expire when concluding a new contracts?
According to Article 34 of the Labor Code 2019, the following cases of termination of an employment contract are prescribed:
Cases of termination of an employment contract
1. The employment contract expires, except for the case specified in Clause 4 Article 177 of this Code.
2. The tasks stated in the employment contract have been completed.
3. Both parties agree to terminate the employment contract.
4. 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.
5. The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.
6. The employee dies; is declared by the court as a legally incapacitated person, missing or dead.
7. 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.
8. The employee is dismissed for disciplinary reasons.
9. The employee unilaterally terminates the employment contract in accordance with Article 35 of this Code.
10. The employer unilaterally terminates the employment contract in accordance with Article 36 of this Code.
11. The employer allows the employee to resigns in accordance with Article 42 and Article 43 of this Code.
12. The work permit or a foreign employee expires according to Article 156 of this Labor Code.
13. The employee fails to perform his/her tasks during the probationary period under the employment contract or gives up the probation.
Accordingly, the employer and employee who want to terminate the old employment contract must make an agreement with each other on the termination of that employment contract, or they can let the employment contract expire automatically. However, during that time, the rights and obligations of the parties under the old contract still arise.
Thus, when signing a new employment contract, the old employment contract will not automatically terminate.
What are the rights of employee to unilaterally terminates the employment contract in Vietnam?
The employee's right to unilaterally terminate the labor contract is specified in Article 35 of the Labor Code 2019.
Accordingly, an employee shall have the right to unilaterally terminate the employment contract, provided he/she notices 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 case of an employment contract with a fixed term of under 12 months;
- The notice period in certain fields and jobs shall be specified by the government.
An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:
- 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 Labor Code 2019;
- is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of Labor Code 2019.
- 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;
- is sexually harassed in the workplace;
- is pregnant and has to stop working in accordance with Clause 1 Article 138 of Labor Code 2019.
- reaches the retirement age specified in Article 169 of Labor Code 2019, unless otherwise agreed by the parties; or
- finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of Labor Code 2019 in a manner that affects the performance of the employment contract.
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