UNILATERAL TERMINATION PROCEDURE
OF LABOR CONTRACT
OUTLINES
1. Cases of unilateral termination of labor contracts:
⮚ In case the employee unilaterally terminates the contract.
⮚ In case the employer unilaterally terminates the contract.
2. Procedures for unilaterally terminating the labor contract:
✔ Procedures for unilaterally terminating labor contracts for employees.
✔ Procedures for unilaterally terminating labor contracts for employers.
Figure 1. Thinh Tri Law - Procedures for unilateral termination of labor contracts.
- A labor contract is an agreement between the parties involved in the labor. However, if you want to unilaterally terminate the labor contract, the consent of the other party is not required. However, unilaterally terminating a labor contract to be legal must comply with the provisions of law. So, how is the order and procedures for unilateral termination of the labor contract conducted?
An employment contract is an agreement between an employee and an employer. Therefore, the unilateral termination of the labor contract may occur from the employee or the employer, specifically:
Cases of unilateral labor contract termination from employee:
-
Pursuant to the provisions of Article 35 of the Labor Code 2019, which stipulates that the employee has the right to unilaterally terminate the contract without reason. That is, as long as the employee wants to, he or she has the right to unilaterally terminate the labor contract.
- However, to be considered a legal termination of a labor contract, the employee must ensure that the procedures for unilaterally terminating the contract are prior notice to the employer.
- This regulation aims to create conditions for employees to exercise their right to freely choose jobs to get better job opportunities for themselves.
- Concurrently, the employee must notify the employer in advance when unilaterally terminating the contract which helps the enterprise to have time to arrange and arrange replacement personnel or conduct the recruitment of new personnel.
→ Read more: Regulations on the right to unilaterally terminate labor contracts.
⮚ Case of unilateral labor contract termination from employer:
- Pursuant to Article 36 of the Labor Code, the employer also has the right to unilaterally terminate the labor contract, but the enterprise can only exercise this right in the following cases:
1 – The employee regularly fails to complete the work stated in the labor contract. This will be determined based on the job completion assessment criteria contained in the employer's regulations.
2 – The employee has been sick or has an accident and has received treatment but his working capacity has not yet recovered.
The duration of treatment is determined as follows:
+ Indefinite labor contract, treatment period is 12 consecutive months.
+ Labor contract from 12 - 36 months, the duration of treatment is 06 consecutive months.
+ Labor contract of less than 12 months, the duration of treatment is more than half of the contract term.
3 – Due to natural disaster, fire, dangerous epidemic, enemy sabotage, or the employer has to relocate or narrow down production and business at the request of the competent authority that the employer tried all measures to overcome the problem of reducing the working place of employees.
4 – The employee was not present at the workplace after 15 days from the expiration of the contract suspension period or after the time agreed by the parties.
5 - The employee has reached full retirement age, unless otherwise agreed by the parties.
6 – The employee has voluntarily quit his job without a valid reason for 05 consecutive working days or more.
Legitimate reasons include natural disasters, fires, illness of themselves or their relatives certified by medical examination and treatment establishments and other cases in the labor regulations.
7 – The employee provides dishonest information about that person's personal information when entering into a contract, affecting the recruitment of employees.
→ Reference: Employers terminate labor contracts due to changes in structure and technology.
Image 2. Thinh Tri Law - Procedures for unilateral termination of labor contracts.
✔ Procedures for unilateral termination of labor contracts for employees::
- When an employee unilaterally terminates a labor contract, he/she must notify the employer in advance for a certain period of time:
- The employee must inform at least 120 days to the employer: this time applies to the case where the employee signs an indefinite labor contract or has a term of 12 months or more to work in various industries and special job.
- The employee must give notice to the employee at least of the term of the labor contract: this time applies to the case where the employee performs specific jobs under the labor contract under12 months.
- The employee must notify the employee at least 45 days in advance: this time applies to the case where the employee works under an indefinite term labor contract.
- The employee must notify the employee at least 30 days in advance: this time applies to the case where the employee works under a labor contract with a term of 12 to 36 months.
- The employee must notify the employee at least 03 working days in advance: this time applies to the case the employee works under a labor contract with a term of less than 12 months.
- Workers without prior notice:
The employee unilaterally terminates the labor contract without prior notice if for one of the following reasons:
- The employee is not assigned the right job, the working location or the employee is not guaranteed working conditions as agreed, except in the case of employee transfer.
- The employee is not paid in full by the employer or is not paid on time as agreed.
- The employee is abused or beaten by the employer or the employer abuses, beats or has abusive words, acts, acts affecting the health, products, honor or forced labor.
- Employees suffer sexually harassment at work
- Female employees who are pregnant and have to quit their jobs because working will adversely affect the fetus.
- The employee has reached full retirement age, unless otherwise agreed by the parties.
- The employer has provided untruthful information related to the job affecting the performance of the contract.
- Pursuant to:
- Article 35 of the Labor Code 2019 and Article 7 of Decree 145/2020/ND-CP.
- Note: The current law does not specifically provide for the form of advance notice, but in order to prove that the employee has inform in advance to the employer as prescribed by law, the employee should write an email or write an application to notify the resignation and obtain confirmation from the manager or department in charge.
→ Read more: Seasonal contract and some notes.
✔ The practice of unilaterally terminating a labor contract for an employer:
- The employer unilaterally terminating the labor contract must also carry out the prior notice procedures:
- The employer shall give at least 120 days notice to the employee:
- If signing a labor contract with an indefinite term or with a term of 12 months with an employee doing a particular job.
- The employer gives a notice equal to ¼ of the term of the contract with the employee: applicable in the case of signing a labor contract of less than 12 months with the employee doing specific jobs.
- The employer gives at least 45 days notice to the employee: applicable in case of signing an indefinite term labor contract with the employee.
- The employer gives at least 30 days notice to the employee:
- applicable in the case of signing a labor contract with a term of 12 - 36 months with the employee.
- The employer gives at least 03 working days notice:
- applicable in case of signing a labor contract of less than 12 months with the employee or in case the employee has been treated for illness or accident but his/her health is not yet available. recovered.
- In case the employer unilaterally terminates the labor contract without prior notice:
- applicable in case the employee is not present at the workplace after the period of suspension of the labor contract or the employee voluntarily intention to quit the job with unwarranted reasons from 05 consecutive working hours.
- Pursuant to: Article 36 of the Labor Code 2019 and Article 7 of Decree 145/2020/ND-CP.
- The above is the procedure for unilaterally terminating the labor contract of the employer and the employee. Hope this article will provide useful information for you.
→ Read more: Penalties for late payment from enterprises based on latest labor contracts.
- For more details on the above, please contact us:
THINH TRI LAW LIMITED LIABILITY
Hotline: 1800 6365
