An individual named A who has worked at a company for 6 years and signed a labor contract faces a situation. The individual has composed a resignation letter, adhering to the terms of the contract, and provided it to the company 45 days before the intended departure date. Despite this, the company has not taken action to address the matter, leaving the individual unable to leave the job. What course of action should be pursued under these circumstances? What is the Legal Unilateral Termination of the Labor Contract?
Lawyer Tran Van Toan from Khanh Hung Law Office, a member of the Hanoi Bar Association, has responded to this query as follows: “Pursuant to Article 34, Clause 9 of the Labor Code 2019, a labor contract is deemed terminated when an employee executes a unilateral termination in accordance with the stipulations of Article 35 in the same Code.”
As per Article 35 of the Labor Code, an employee possesses the right to unilaterally terminate a labor contract; however, advance notification to the employer is mandatory.
1. The stipulated advance notice periods are as follows:
A minimum of 45 days when operating under an indefinite-term labor contract;
A minimum of 30 days when engaged in a definite-term labor contract spanning from 12 to 36 months;
A minimum of 3 working days when involved in a definite-term labor contract with a duration of less than 12 months;
Specific industries, trades, and jobs must adhere to notice periods as dictated by governmental regulations.
Important considerations on the unilateral termination of a labor contract in Vietnam
2. Instances of Contract Termination Without Prior Notice
An employee reserves the right to terminate a labor contract unilaterally without providing prior notice in the following scenarios:
Situations where the employee is not assigned the correct role, working location, or where agreed-upon working conditions are not ensured—except in instances outlined in Article 29 of the Labor Code;
Failure to receive complete or timely payment, except in circumstances detailed in Clause 4, Article 97 of the Labor Code;
Instances of abuse, physical assault by the employer, or the usage of derogatory language or actions that impact health, dignity, and honor, including forced labor;
Encountering sexual harassment in the workplace;
Female employees who are pregnant and require leave as stipulated in Clause 1, Article 138 of the Labor Code;
Reaching the retirement age according to Article 169 of the Labor Code, unless a different agreement is reached by both parties;
When the employer supplies false information as outlined in Clause 1, Article 16 of the Labor Code, thereby affecting the execution of the labor contract.
3. Time Limits for Notice of Contract Termination in Specific Professions
3.1 Notification timeframe for distinct industries and jobs
The notification timeframe for distinct industries and jobs is detailed in Article 7 of Decree No. 145/2020/ND-CP, dated December 14, 2020, issued by the Government. The provisions are as follows:
Specific industries, occupations, and jobs encompass: aircraft pilot crew members; aviation maintenance technicians; aviation repair technicians; flight dispatchers and operators; enterprise managers as designated by the Law on Enterprises, as well as the Law on the management and utilization of state capital invested in production and business within enterprises; crew members operating aboard Vietnamese ships engaged in overseas operations; crew members leased by Vietnamese enterprises for work on foreign vessels.
How is illegal one-sided termination of labor contracts from employers?
>>>Read more: Contract for employee management
3.2 Unilaterally terminates a labor contract
When an employee involved in these particular industries, professions, or jobs either unilaterally terminates a labor contract or the employer unilaterally terminates the labor contract for these employees, the notification period is as follows:
A minimum of 120 days for an indefinite-term labor contract or a definite-term labor contract lasting 12 months or more;
A period equivalent to one-quarter of the labor contract's duration for contracts shorter than 12 months.
4. Analyze given case when an individual unilateral Termination of the Labor Contract
In the situation where an individual named A, who has completed 6 years of service and signed a labor contract, is placed, it can be established that the individual is operating under an indefinite-term labor contract, based on their tenure with the company. Unless the individual falls under the category of performing specific industries, professions, or jobs (as specified in Point d, Clause 1, Article 35 of the Labor Code, and elaborated in Article 7 of Decree No. 145/2020/ND-CP), the advance notification period for unilateral termination of the labor contract stands at 45 days (as stipulated in Point a, Clause 1, Article 35 of the Labor Code).
In the situation of the mentioned individual named A, who submitted her resignation letter and provided 45 days' notice, yet the company has not managed to resolve the necessary procedures and entitlements related to her departure after the designated timeframe, leading to her resignation, the individual holds the right to unilaterally terminate the labor contract. This aligns with the legal context for the unilateral termination of the labor contract.
If you still have question regarding legal unilateral termination of the labor contract, feel free to reach out to us using the contact information provided below:
CONTACT FARO VIETNAM today for comprehensive and reliable HR solutions.
HANOI HEAD OFFICE
Address: Unit 701A, 7th floor, Handi Resco Tower, 521 Kim Ma street, Ba Dinh district, Ha Noi
Tel: + 84 24 3974 3091
Fax: + 84 24 3974 3090
HO CHI MINH CITY OFFICE
Address: Unit 1102, 11th floor, Central Plaza Office Building, District 1, Ho Chi Minh city
Tel: + 84 28 3821 4654
Fax: + 84 28 3821 4653
Grow your business with our trusted Human Resource Solutions.