Hanoi-Vietnam: Public employees have the right to unilaterally terminate working contracts

Mr. Hai inquired whether he is allowed to unilaterally terminate his working contract after 45 days of written notice according to Clause 4, Article 29 of the Law on Public Employees 2010.

The provisions in Point d, Clause 2, Article 38 of Decree 29/2012/ND-CP regarding public employees wishing to resign but unable to do so due to work requirements and the inability to arrange a replacement, seem to conflict with the rights of public employees to unilaterally terminate the working contract as stipulated in Clause 4 and Clause 5, Article 29 of the Law on Public Employees.

Lawyer Tran Van Toan from Khanh Hung Law Office - Hanoi Bar Association addresses Mr. Hai's query as follows:

Clause 1, Article 38 of Decree 29/2012/ND-CP dated April 12, 2012, by the Government of Vietnam on the recruitment, employment, and management of public employees stipulates that public employees can resign in the following cases:

- Public employees voluntarily request resignation and it is approved in writing by the competent authority;

- Public employees unilaterally terminate the working contract as stipulated in Clause 4 and Clause 5, Article 29 of the Law on Public Employees 2010, which includes cases where:

For indefinite-term working contracts, public employees must notify the head of the public service provider in writing at least 45 days in advance; if the public employee is ill or has had a continuous treatment of 6 months, a minimum notice period of 3 days is required (Clause 4, Article 29 of the Law on Public Employees).

For fixed-term working contracts, public employees may unilaterally terminate the contract in the following cases: not being assigned to the correct job position or workplace, or not provided with agreed-upon working conditions; not being fully paid or timely paid as per the working contract; suffering mistreatment; being forced labor; facing really difficult circumstances that prevent the continuation of the contract; female public employees pregnant and required to leave work by medical facility; public employees ill or injured with continuous treatment of 3 months unable to resume work (Clause 5, Article 29 of the Law on Public Employees).

- The public service provider may unilaterally terminate the working contract with public employees in cases prescribed in Point c, Point d, and Point dd, Clause 1, Article 29 of the Law on Public Employees, including:

For an indefinite-term working contract, if the public employee is ill and has had continuous treatment of 12 months, and for a fixed-term working contract, if the public employee is ill and has had continuous treatment of 6 months without recovery (Point c, Clause 1, Article 29 of the Law on Public Employees).

Due to natural disasters, fire, or other force majeure reasons as prescribed by the Government of Vietnam forcing the public service provider to downsize, rendering the job position held by the public employee redundant (Point d, Clause 1, Article 29 of the Law on Public Employees).

If the public service provider ceases operations as decided by the competent authority (Point dd, Clause 1, Article 29 of the Law on Public Employees).

Regarding Mr. Hai's case, according to the lawyer, the situation where a public employee voluntarily requests resignation and is approved in writing by the competent authority as per Point a, Clause 1, Article 38 of Decree No. 29/2012/ND-CP is a case of both parties terminating the working contract agreement.

Due to work requirements, the head of the public service provider has not arranged a replacement and hence has not processed Mr. Hai's resignation according to Point d, Clause 2, Article 38 of Decree No. 29/2012/ND-CP. This indicates that neither party has yet agreed to terminate the working contract.

In addition to terminating the working contract by agreement or failing to reach an agreement as mentioned above, Point b, Clause 1, Article 38 of Decree No. 29/2012/ND-CP also stipulates that public employees on indefinite-term working contracts have the right to unilaterally terminate the contract according to Clause 4, Article 29 of the Law on Public Employees 2010.

Suppose the public service provider has not approved Mr. Hai's resignation request. In that case, he still retains the right to unilaterally terminate the working contract after giving at least 45 days of written notice to the head of the public service provider.

Within 45 days from the date Mr. Hai provides written notice of unilateral termination of the working contract, the public service provider must have a personnel plan to replace Mr. Hai's job position to ensure work requirements after his resignation.

As analyzed above, the provisions in Point d, Clause 2, Article 38 of Decree 29/2012/ND-CP regarding public employees wishing to resign but not approved due to work requirements and lack of a replacement, are not in conflict with the provisions on the right to unilaterally terminate the working contract by public employees as stipulated in Clause 4 and Clause 5, Article 29 of the Law on Public Employees because these two legal norms address two different matters: termination of working contract by agreement and unilateral termination of working contract by public employees.

Lawyer Tran Van Toan

Khanh Hung Law Office – Hanoi Bar Association

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