13 cases of termination of an employment contract under the Labor Code in Vietnam

13 cases of termination of an employment contract under the Labor Code in Vietnam (Internet image)

1. 13 cases of termination of an employment contract under the Labor Code in Vietnam

Article 34 of the Labor Code 2019 stipulates cases of termination of an employment contract as follows:

(1) The employment contract expires, except for the case specified in Clause 4 Article 177 of the Labor Code 2019.

(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 the Labor Code 2019.

(10) The employer unilaterally terminates the employment contract in accordance with Article 36 of the Labor Code 2019.

(11) The employer allows the employee to resigns in accordance with Article 42 and Article 43 of the Labor Code 2019.

(12) The work permit or a foreign employee expires according to Article 156 of the Labor Code 2019.

(13) The employee fails to perform his/her tasks during the probationary period under the employment contract or gives up the probation.

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

Article 35 of the Labor Code 2019 stipulates the right of an employee to unilaterally terminates the employment contract as follows:

- 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 the Labor Code 2019;

+ Is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of the 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 the Labor Code 2019.

+ Reaches the retirement age specified in Article 169 of the 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 the Labor Code 2019 in a manner that affects the performance of the employment contract.

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

Article 36 of the Labor Code 2019 stipulates the right of an employer to unilaterally terminates the employment contract as follows:

- 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 the Labor Code 2019;

+ The employee reaches the retirement age specified in Article 169 of the 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 the Labor Code 2019 in a manner that affects the recruitment.

- When unilaterally terminating the employment contract in any of the cases specified in Point a, b, c, dd and g Clause 1 of Article 36 of the Labor Code 2019, the employer shall inform 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 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 employment contract in the cases mentioned in Point d and Point e Clause 1 of Article 36 of the Labor Code 2019, the employer is not required to inform the employee in advance.

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

Article 37 of the Labor Code 2019 stipulates cases in which an employer is prohibited from unilaterally terminating an employment contract as follows:

- 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 the 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.

Ngoc Nhi

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