Hanoi-Vietnam: May an employee unilaterally terminate the employment contract if the employer fails to approve his/her resignation letter?

May an employee in Vietnam unilaterally terminate the employment contract if the employer fails to approve his/her resignation letter? (Illustrative image)

The editorial board of Lawnet would like to answer Xuan's question as follows:

The information you provided is not full. First of all, you need to determine your type of employment contract. Then, it must consider whether the prior notice period before resigning from your employer is lawful.

Case 1: Your employment contract is a fixed-term employment contract (a contract in which the two parties determine the duration and the time of termination of the contract's validity within a period from 12 months to 36 months)

According to the provisions of Clause 1, Article 37 of the Labor Code 2012, if your employment contract is a fixed-term contract, you have the right to unilaterally terminate the employment contract ahead of time in the following cases:

a/ He/she is not assigned to the job or workplace or is not given the working conditions as agreed in the employment contract;

b/ He/she is not paid in full or on time as agreed in the employment contract;

c/ He/she is maltreated, sexually harassed or is subject to forced labor;

d/ He/she is unable to continue performing the employment contract due to personal or family difficulties;

e/ He/she is elected to perform a full-time duty in a people-elected office or is appointed to hold a position in the state apparatus;

f/ A female employee who is pregnant and must take leave as prescribed by a competent health establishment;

g/ If he/she is sick or has an accident and remains unable to work after having received treatment for 90 consecutive days, in case he/she works under a definite-term employment contract, or for a quarter of the contract’s term, in case he/she works under a employment contract for a seasonal job or a specific job of under 12 months.

Regarding the prior notice period: Clause 2, Article 37 of the Labor Code 2012 stipulates that when unilaterally terminating the employment contract under the above provisions, you must notify the employer as follows:

- At least 3 working days in advance, in the case specified at Point a, b, c or g, Clause 1 of this Article;

- At least 30 days in advance for a definite-term employment contract; at least 3 working days for a seasonal or work-specific labor or a specific job of under 12 months in the case specified at Point d or e, Clause 1 of this Article;

- In the case specified at Point f, Clause 1 of this Article, a prior notice should be given to the employer in accordance with Article 156 of this Code.

Thus, if your employment contract with the employer is a fixed-term contract, you must comply with the conditions and prior notice periods mentioned above.

Case 2: Your employment contract is an indefinite-term employment contract (a contract in which the two parties do not determine the duration and the time of termination of the contract's validity)

According to the provisions of Clause 3, Article 37 of the Labor Code 2012:

Article 37. The right to unilaterally terminate the employment contract of the employee

...

3. An employee working under an indefinite-term employment contract may unilaterally terminate the employment contract provided that he/she informs such to the employer at least 45 days in advance, except the case specified in Article 156 of this Code.

Thus, if your employment contract with the employer is an indefinite-term contract, you have the right to unilaterally terminate the employment contract without a reason or condition. However, you must notify the employer at least 45 days in advance, except in the case of "female employees who are pregnant unilaterally terminating the employment contract."

Note: If you unilaterally terminate the employment contract illegally, you will not be entitled to a severance allowance and to compensate the employer half of a month’s wage by the employment contract. Also, if you violate the prior notice period regulation, you must compensate the employer an amount equivalent to your salary for the days not notified. (under Article 43 of the Labor Code 2012).

You can refer to the above regulations to resign according to the current applicable law. You should submit your resignation letter at least 30-45 days in advance to ensure compliance with the law until a written decision from the employer confirming your resignation is issued.

Thu Ba

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