Is employee allowed to unilaterally terminates the employment contract when he/she reaches retirement age in Vietnam?

Is employee allowed to unilaterally terminates the employment contract when he/she reaches retirement age in Vietnam? (Internet image)

Regarding this issue, LawNet would like to answer as follows:

1. Is employee allowed to unilaterally terminates the employment contract when he/she reaches retirement age in Vietnam? 

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

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

- 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 accordance with Clause 1 Article 16 of this Labor Code in a manner that affects the performance of the employment contract.

Thus, according to the above regulations, employees who reach retirement age have the right to unilaterally terminate the labor contract without prior notice, unless the parties agree otherwise.

2. Is employer allowed to unilaterally terminates the employment contract when the employee reaches retirement age in Vietnam? 

Specifically, 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 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 employee  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.

Thus, according to the above regulations, the employer has the right to unilaterally terminate the labor contract when the employee reaches retirement age. However, unilateral termination of the labor contract 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;

- For some specific industries, professions, and jobs, the notice period is implemented according to the Government's regulations.

Nguyen Ngoc Que Anh

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE