Issue 020222 – Obligations of an employee in case of unilateral termination of the employment contract

Dear Valued Clients,

Pursuant to the 2019 Labor Code, an employee is entitled to unilaterally terminate the employment contract (“EC”) upon the prior notice to the employer in certain circumstances. ENT would like to send Valued Clients this article clarifying regulations related to this matter.

Obligations of an employee in case of legal unilateral termination of the EC[1]

While an employer is only entitled to unilaterally terminate the EC in certain cases, the law allows employees to unilaterally terminate the EC in all cases, but it is necessary to satisfy the prior notice obligation, more specifically:

1. Cases of unilateral termination of an EC with a prior notice of:

a) At least 45 days in case of an indefinite-term EC.

b) At least 30 days in case of an EC with a fixed term of 12 – 36 months.

c) At least 03 working days in case of an EC with a fixed term of under 12 months.

d) Regarding certain special works and lines of business[2], the prior notice period shall be implemented as follows:

• • • At least 120 days before the termination date in case of an indefinite-term EC or an EC with a fixed term of at least 12 months.
    • At least one fourth (1/4) of the EC term in case of an EC with a fixed term of under 12 months.

2. Cases of unilateral termination of an EC without prior notice:

An employee shall have the right to unilaterally terminate the EC without prior notice if he/she:

a) Is not assigned to the work or workplace or not provided with the working conditions as agreed in the EC, except for the cases of reassignment of the employee against the EC[3].

b) Is not paid adequately or on schedule, except for the case of salary payment delay due to force majeure events[4].

c) 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.

d) Is sexually harassed in the workplace.

e) Is pregnant and has to stop working[5].

f) Reaches the retirement age, unless otherwise agreed by the parties[6].

g) Finds that the employer fails to provide truthful information[7] in a manner that affects the performance of the EC.

Obligations of an employee in case of illegal unilateral termination of the EC

Any cases, where the employee fails to comply with the aforementioned notice obligations, shall be considered illegal unilateral termination of the EC and the employee must take responsibilities under Article 40 of the 2019 Labor Code as follows:

a) Not receive the severance allowance.

b) Pay the employer a compensation that is worth his/her half a month’s salary plus (+) an amount equal to his/her salary for the remaining notice period from the termination date.

c) The employee shall reimburse the employer the training costs[8].

As usual, we hope you find this Legal Article helpful and look forward to working with you in the upcoming time.

Kind regards,

ENT Law LLC

The full version of this Legal Article can be found here.

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[1] Under Article 35 of the 2019 Labor Code.

[2] Under Article 7.1 of the 2019 Labor Code:

“Special works and lines of business include:

• • Aircrew members; aircraft maintenance technicians, aviation repairmen; flight coordinators.
  • Enterprise managers defined by the Law on Enterprises; the Law on Management and use of State Investment in Enterprises.
  • Crewmembers working on Vietnamese vessels operating overseas; crewmembers dispatched to foreign vessels by Vietnamese dispatching agencies.
  • Other cases prescribed by law”.

[3] Under Article 29 of the 2019 Labor Code.

[4] Under Article 97.4 of the 2019 Labor

[5] Under Article 138.1 of the 2019 Labor Code.

[6] Under Article 169 of the 2019 Labor Code.

[7] Under Article 16.1 of the 2019 Labor Code: “The employer must provide the employee with truthful information about the job, workplace, working conditions, working hours, rest periods, occupational safety and health, wage, forms of wage payment, social insurance, health insurance, unemployment insurance, regulations on business secret, technological know-how, and other issues directly related to the conclusion of the employment contract if requested by the employee”.

[8] Under Article 62 of the 2019 Labor Code.