03 Cases in which an employer is prohibited from unilaterally terminating an employment contract in Vietnam

What are the cases in which an employer is prohibited from unilaterally terminating an employment contract in Vietnam? - Hoang Lan (Quang Binh, Vietnam)


Cases in which an employer is prohibited from unilaterally terminating an employment contract in Vietnam (Internet image)

1. Cases in which an employer is prohibited from unilaterally terminating an employment contract in Vietnam

According to Article 37 of the Labor Code 2019, 03 cases in which an employer is prohibited from unilaterally terminating an employment contract in Vietnam include:

- The employee is suffering from an illness or work accident, occupational disease and is being treated or nursed under the decision of a competent health institution, except for the cases stipulated in Point b Clause 1 Article 36 of Labor Code 2019.

- The employee is on annual leave, personal leave, or any other types of leave permitted by the employer.

- The employee is pregnant, on maternal leave or raising a child under 12 months of age.

2. The right of an employer to unilaterally terminates the employment contract in Vietnam

Article 36 of the Labor Code 2019 stipulates that an employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:

- 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);

- 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;

- 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;

- The employee is not present at the workplace after the time limit specified in Article 31 of Labor Code 2019;

- The employee reaches the retirement age specified in Article 169 of Labor Code 2019, unless otherwise agreed by the parties;

- The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

- The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of Labor Code 2019 in a manner that affects the recruitment.

Note: When unilaterally terminating the labor contract in the above cases (except for the case where the employee is not present at the workplace after the time limit and the employee voluntarily quits without a valid reason), from 05 consecutive working days or more), the employer must notify the employee in advance as follows:

- 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 and in the cases stipulated in Point b Clause 1 of Article 36 of the Labor Code 2019;

- The notice period in certain fields and jobs shall be specified by the government.

When unilaterally terminating the labor contract in case the employee is not present at the workplace after the time limit and the employee voluntarily quits without a valid reason for 05 consecutive working days or more, the employer is not required to notify the employee in advance.

Nhu Mai

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