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Cases of Unilateral Termination of an Employment Contract by the Employee and Employer According to the Labor Code.
Reasons for Termination of an Employment Contract
The reasons for terminating an employment contract can be categorized into various cases based on labor law regulations. According to the Labor Code of Vietnam, there are 13 reasons for terminating an employment contract. These reasons may arise from mutual agreement between the employee and the employer, the unilateral decision of the employer, or the unilateral decision of the employee.
This article aims to analyze specific cases in which the employer or the employee has the right to unilaterally terminate the employment contract according to the law.
Cases of Unilateral Termination of an Employment Contract by the Employer
The Employer’s Right to Unilaterally Terminate the Employment Contract in the Following Cases:
1. The employee frequently fails to complete the job: If the employee does not meet the performance criteria as agreed in the employment contract or as set by the company, the employer has the right to terminate the contract. The evaluation criteria must be clearly stated in the company’s assessment regulations and should be consulted with the employee’s representative organization at the workplace (if any). The evaluation must be specific and fair, not based on subjective judgment.
2. The employee suffers from long-term illness or injury: If the employee has been ill or injured and has undergone continuous treatment for an extended period without recovery, the employer has the right to terminate the contract. Specifically, continuous treatment for 12 months for indefinite-term contracts, 6 months for fixed-term contracts lasting 12 to 36 months, and more than half the term for fixed-term contracts under 12 months. However, if the employee recovers after this period, the employer may consider re-signing the contract with them.
3. Due to natural disasters, fires, epidemics, or other emergency situations: If the business faces difficulties due to natural disasters, fires, dangerous epidemics, enemy destruction, or is forced to relocate or downsize by the request of competent state authorities, the employer has the right to terminate the contract. This applies only when the employer has made all efforts to overcome the difficulties but is still unable to maintain employment for the employee.
4. The employee does not return to work after a temporary suspension of the contract: If the employee fails to return to work after the period stipulated in Article 31 of the Labor Code (related to temporary suspension of the employment contract), the employer has the right to unilaterally terminate the contract.
5. The employee reaches the retirement age: When the employee reaches the retirement age as prescribed in Article 169 of the Labor Code, the employer may terminate the contract. This does not apply if both parties have agreed to extend the employment period beyond retirement age.
6. The employee is absent from work for 5 consecutive working days without a valid reason: The employer has the right to terminate the contract if the employee is absent from work for 5 consecutive working days without providing a reasonable justification. Acceptable reasons include medically certified illness, natural disasters, fires, or other force majeure circumstances.
7. The employee provided false information during the contract signing: If the employee provided dishonest information when entering into the employment contract, and this information affects the hiring decision, the employer has the right to unilaterally terminate the contract.
Cases of Unilateral Termination of an Employment Contract by the Employee
According to the Vietnamese Labor Code, employees have the right to unilaterally terminate the employment contract, but they are required to provide advance notice to the employer. Specifically, the notice period depends on the type of employment contract and the nature of the work the employee is performing, as follows:
- Indefinite-term employment contract: The employee must provide at least 45 days’ notice.
- Fixed-term employment contract (12 to 36 months): The employee must provide at least 30 days’ notice.
- Fixed-term employment contract (less than 12 months): The employee must provide at least 3 working days’ notice.
- For certain industries, professions, or specific jobs: The notice period will be governed by special regulations issued by the Government. The notice requirements for these sectors may differ from the general rules mentioned above.
However, in the following cases, employees may unilaterally terminate the employment contract immediately without being required to follow the advance notice period mentioned above:
1. Not being assigned the agreed job, workplace, or working conditions: If the employer does not assign the employee the job or workplace as agreed in the employment contract or does not ensure the working conditions agreed upon, the employee has the right to terminate the contract immediately. This does not apply in cases related to temporary reassignment of the employee to another job as regulated by the Labor Code.
2. Not being paid full or timely wages: If the employer does not pay the full salary or fails to pay on time, the employee has the right to terminate the employment contract without notice. However, if the delay in payment is due to force majeure reasons as stated in Clause 4, Article 97 of the Labor Code, such delays may be acceptable, provided the employer has made every effort to resolve the situation.
3. Being mistreated, beaten, or humiliated: In cases where the employee is mistreated, beaten, verbally or physically humiliated, or forced into labor, the employee has the right to immediately terminate the contract. Such behavior can harm the employee’s health, dignity, and personal integrity.
4. Being sexually harassed at the workplace: If the employee is sexually harassed at the workplace, they have the right to terminate the employment contract without providing prior notice. This measure protects the rights and dignity of the employee.
5. Pregnant female employees needing to leave for health reasons: If a pregnant female employee needs to leave due to her own health or the health of her unborn child as advised by a competent medical facility, she has the right to terminate the contract immediately without notice.
6. Reaching retirement age: When the employee reaches the retirement age as prescribed by law, they may terminate the employment contract without notice, unless there is another agreement with the employer.
7. The employer provides false information: If the employer provides false information regarding the content of the employment contract, and this affects the employee’s rights or ability to perform the contract, the employee has the right to terminate the contract without notice.
These regulations help protect employees from unfair or harmful working conditions and ensure that they can legally leave their job when their basic rights are violated.
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