Is Resigning Before 45 Days a Breach of the Labor Contract and Subject to Compensation?

Resignation before 45 days: Is it a violation of the labor contract and subject to compensation? (Illustrative image)

Regarding this issue, THU KY LUAT would like to respond as follows:

According to Article 37 of the Labor Code 2012, an employee has the right to unilaterally terminate the labor contract but must notify the employer in advance:

- At least 3 working days if the employee:- Is not assigned to the correct job, workplace or not ensured the working conditions agreed upon in the labor contract;- Is not fully paid or paid late according to the agreed timeline in the labor contract;- Is maltreated, sexually harassed, coerced into labor;- Is sick or has an accident and has been treated according to regulations but not recovered;- Has personal or family difficulties that make it impossible to continue the labor contract; or is elected to a full-time position in an elected body or appointed to hold office in the state apparatus if it is a seasonal labor contract or specific job terms less than 12 months.

- At least 30 days if it is a definite-term labor contract;

- At least 45 days if it is an indefinite-term labor contract unless stipulated otherwise in Article 156 of this Code, specifically:- For pregnant female workers, if a competent medical facility certifies that continuing to work would adversely affect the fetus, they have the right to unilaterally terminate or temporarily suspend the labor contract but must notify the employer, accompanied by a suggestion from the competent medical facility on the impact of continuing work on the fetus;- The notice period to unilaterally terminate or temporarily suspend the labor contract corresponds with the time specified by the competent medical facility.

Moreover, under Article 43 of the 2012 Labor Code, obligations for employees who unilaterally terminate the labor contract illegally are defined as follows:- Not eligible for severance allowance and must compensate the employer with half a month’s salary according to the labor contract;- If violating the notice period requirement, must compensate the employer an amount corresponding to the employee’s salary for the unnoticed days;- Must reimburse the training costs to the employer as regulated in Article 62 of this Code.

Thus, based on the above regulations, it can be divided into two cases as follows:

Case 01: If you fall under any of the following categories, you do not violate the labor contract and are not required to compensate the company when resigning before 45 days. Specifically:- Not assigned to the correct job, workplace or not ensured the working conditions agreed upon in the labor contract;- Not fully paid or paid late according to the agreed timeline in the labor contract;- Maltreated, sexually harassed, coerced into labor;- Sick or has an accident and has been treated but not recovered;- Pregnant female worker certified by a competent medical facility that continuing to work would adversely affect the fetus.

Case 02: If you do not fall under the categories specified in Case 01, you need to notify the company at least 45 days in advance (not 45 working days). If you resign before the stipulated 45 days, you have unilaterally terminated the labor contract illegally and must bear the legal consequences as per current law, details are as follows:- Not eligible for severance allowance and must compensate the company with half a month's salary according to the labor contract;- Must reimburse training costs to the company.

However, within the 45-day notice period, you can apply for leave or unpaid leave, and if approved by the company, you can still take normal leave.

TyNa

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