Can company request employees to agree not to work for a rival company in Vietnam?

Can company request employees to agree not to work for a rival company in Vietnam?

Please ask, I was recruited to work as an IT in a company that writes game software. In my labor contract, there is a mandatory agreement during the working process and after leaving for 3 years not to work for a rival company. In case of violation, the company must compensate. Is it legal for the company to force me to make such an agreement? Because it restricts my right to work.

Reply:

Pursuant to the provisions of Clause 1, Article 13 of the Labor Code 2019: 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.

At the same time, Clause 2, Article 21 of the Labor Code 2019 also defines:

2. If the employees’ job is directly related to the business secret, technological know-how as prescribed by law, the employer has the rights to sign a written agreement with the employee on the content and duration of the protection of the business secret, technology know-how, and on the benefit and the compensation obligation in case of violation by the employee.

According to this provision in Vietnam, enterprises and employees are entitled to agree on contents of the labor contract, including the protection of business secrets. Depending on the business, this content will be negotiated differently.

As you provide information, the company you request is not to work for a competitor within 3 years after quitting, this is the company's right to agree by law. As for you, as a party to an employment relationship, you have right to agree to sign or not to sign a contract. If you agree, you must comply with the agreed content in Vietnam.

Is it legal for the company to force employees to leave before the notice period in Vietnam?

The employee on my side has an indefinite-term employment contract, and submits a resignation letter on December 1, stating that the last working day is February 20 of the following year, that is, more than 45 days in advance according to the law. At the time the employee submits the application, the direct company manager does not respond, however, within 45 days, the employee is required to hand over the job and resign, do not allow them to continue to work until the deadline that they give advance notice. So is it true?

Reply:

Pursuant to the provisions of Point a, Clause 1, Article 35 of the 2019 Labor Code:

1. An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employer in advance:

a) at least 45 days in case of an indefinite-term employment contract;

Considering the case that your employee works under an indefinite-term employment contract, and has given more than 45 days' notice when he quits, it is in accordance with the law inV ietnam.

In this case, if the company responds or does not respond, the employee will hand over the job and resign in accordance with the law in Vietnam.

If the responding company agrees to the employee's resignation and asks the employee to leave before the announced deadline, there will be 2 cases:

- Case 1: The company asks the employee to leave earlier, the employee agrees => The two parties agree to terminate the employment contract according to Clause 3, Article 34 of the Labor Code 2019.

- Case 2: The company requires the employee to leave earlier than the notice period, the employee does not agree but the company is still required to leave immediately => At this time, the company's behavior must be considered as a unilateral termination of employment contract with the employee as prescribed in Article 36 of the Labor Code 2019. Therefore, if the company fails to meet the conditions on the reason for the employee's leave and the notice period, the unilateral termination will result in terminating the employment contract of the company is against the law.

You base on these cases to determine the corresponding case of your company in Vietnam.

Is it mandatory to show time limit in the decision on reassignment of an employee against the employment contract in Vietnam? 

Is it mandatory to show time limit in the decision on reassignment of an employee against the employment contract? If my employees do not comply with this illegal decision because the company does not specify this time limit, will they be subject to labor discipline?

Reply:

Pursuant to the provisions of Clause 1, Article 29 of the Labor Code 2019:

1. In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.

The employer shall specify in the internal labor regulations the cases in which the employer may temporary reassign employees against the employment contracts.

Clause 2 of Article 29 of the Labor Code 2019 also defines:

2. In case of temporarily reassignment of an employee specified in Clause 1 of this Article, the employer shall inform the employee at least 03 working days in advance, specify the reassignment period and only assign works that are suitable for the employee’s health and gender.

According to this regulation in Vietnam, in case there are grounds to transfer the employee to another job within a certain time limit, the employer is required to notify the employee of the temporary transfer time limit. The method of notification may be by decision, by notice or another form at the discretion of the employer.

Therefore, in case your company transfers employees to other jobs when there are grounds, but does not notify the transfer time limit, it violates the above regulations in Vietnam. Because the company violates the regulations, for the employee's failure to comply with the transfer decision, the company has no grounds to discipline this employee.

Best regards!