Vietnam: 03 new points regarding the right to unilaterally terminate the employment contract from 2021

Both employees and employers have the right to unilaterally terminate the employment contract. The Labor Code 2019 of Vietnam specifies 03 new points regarding the right to unilaterally terminate the employment contract as follows:

First: Employees shall have the right to unilaterally terminate the employment contract without stating a reason

According to Article 35 of the Labor Code 2019, 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;

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

According to the Labor Code 2012 of Vietnam (expires from January 01, 2012), employees who wish to unilaterally terminate the employment contract must have a reason and must inform the employer for definite-term contracts (12-36 months) and seasonal or work-specific contracts (less than 12 months). Concurrently, an employee working under an indefinite-term labor contract may unilaterally terminate the labor contract provided that he/she informs the employer at least 45 days in advance.

Thus, it can be seen that from January 01, 2021, from January 01, 2021, in all cases, employees have the right to unilaterally terminate the employment contract by complying with the requirements for advance notice to the employers (the notice period depends on the signed labor contract) without the need for a reason, unlike the current Labor Code. Besides, employees should also note that from January 01, 2021, there will no longer be seasonal or work-specific contracts when entering into a labor contract.

Second: An employee shall have the right to unilaterally terminate the employment contract without prior notice

According to Clause 2 Article 35 of the Labor Code 2019, an employee 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;

- is not paid adequately or on schedule, except for the case of a force majeure event in which the employer is unable to pay the employee on schedule after all remedial measures have been implemented;

- 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 if she obtains a confirmation from a competent health facility which states that if she continues to work, it may adversely affect her pregnancy;

- reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties; or

- finds that the employer fails to provide truthful information in a manner that affects the performance of the employment contract.

This is a new provision compared to the current Labor Code. The Labor Code 2019 has specified cases where employees are allowed to unilaterally terminate the employment contract without the need for advance notice. Therefore, employees can unilaterally terminate the employment contract without prior notice if they find that the employer has violated their rights according to the provisions mentioned.

Third: An employer shall have the right to unilaterally terminate an employment contract if the employee is not present at work without acceptable excuses for at least 05 consecutive working days

In addition to the right of employees to unilaterally terminate the employment contract, the Labor Code 2019 also supplements 03 cases where an employer shall have the right to unilaterally terminate an employment contract. Specifically, according to Points dd, e and g Clause 1 Article 36 of the Labor Code 2019, an employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:

- The employee reaches the retirement age as prescribed, 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 about his/her full name, date of birth, gender, residence, educational level, occupational skills and qualifications, health conditions and other issues directly related to the conclusion of the employment contract during the conclusion of the employment contract in a manner that affects the recruitment.

Therefore, in addition to the cases inherited from the previous regulations, employers shall have the right to unilaterally terminate the employment contract when the employee is not present at work without acceptable excuses for at least 05 consecutive working days, the employee reaches the retirement age or the employee fails to provide truthful information during the conclusion of the employment contract, which affects the recruitment of employees. It can be seen that the Labor Code 2019 of Vietnam supplements these cases to balance the rights and interests of employees and employers and ensure the rights and benefits of both parties.

Ty Na

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