According to Vietnam's regulations, both employees and employers have the right to unilaterally terminate the labor contract. When unilaterally terminating the labor contract, employees need to fulfill the following two things.
Article table of contents
When unilaterally terminating the labor contract, the employee needs to fulfill the following two things (Illustration)
Firstly, to notify the employer in advance before unilaterally terminating the labor contract
According to Clause 1, Article 35 of the Labor Code 2019 (effective from January 1, 2021), 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.
Thus, according to the regulations, employees need to notify the employer before unilaterally terminating the labor contract. Depending on the type of labor contract both parties have signed, the notice period will vary (for example: Ms. Ha signed an 18-month labor contract with company A, she must provide at least 30 days' notice). However, it should be noted that an employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she (this is a new point compared to the Labor Code 2012):
- 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;
- 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 this Labor Code.
- 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.
Customers and members can refer to the article 03 new points on the right to unilaterally terminate labor contracts from 2021.
Secondly, to receive severance allowance and unemployment benefits after unilaterally terminating the labor contract
According to Clause 1, Article 46 of the Labor Code 2019, if employees unilaterally terminate the labor contract legally, the employer is responsible for paying severance allowance to the employee who has worked on a regular basis for a period of at least 12 months. Each year of work will be worth half a month’s salary.
Additionally, according to Article 49 of the Employment Law 2013, employees are entitled to unemployment benefits if they unilaterally terminate the labor contract according to the law and satisfy the following conditions:
- Duration of Unemployment Insurance Participation:
- Have paid unemployment insurance for at least 12 months within 24 months before terminating the labor contract or working contract for cases of indefinite-term labor contracts and fixed-term labor contracts with a term from 12 to 36 months;- Have paid unemployment insurance for at least 12 months within 36 months before terminating the labor contract for cases of fixed-term labor contracts with a term of less than 12 months;
- Have submitted the application for unemployment benefits at the employment service center as prescribed in Clause 1, Article 46 of the Employment Law 2013.
- Have not found employment within 15 days from the date of submitting the application for unemployment insurance.
Thus, after legally unilaterally terminating the labor contract, employees will receive severance pay from the employer with the allowance equal to ½ month's salary for each working year. Also, if employees meet the unemployment insurance contribution requirements, they should submit their applications for unemployment benefits at the employment service center where they reside to receive unemployment benefits (note: employees must not find employment within 15 days from the date of submitting the application for unemployment insurance).
Additionally, according to Clause 3, Article 48 of the Labor Code 2019, when terminating the labor contract, the employer is responsible for:
- Completing the procedures for certifying the social insurance and unemployment insurance payment period and returning it along with the original copies of other documents if the employer has kept those of the employees;- Providing copies of documents related to the employee's working process if requested by the employee (copying and mailing costs shall be covered by the employer).
Ty Na
- Key word:
- Labor Code 2019
