Update: 25.03.2025
In order to ensure the rights of employees to freely choose types of work, Labour Code 2019 has clearer provisions than the Labour Code 2019 on the right to unilaterally terminate the labour contract as well as the obligations of the employer when the employee exercises this right. We will mention and clarify some new points related to the above issues:
I. For employees:
1. Cases where the employee has the right to unilaterally terminate the labour contract without reason but must notice in advance
According to Labour Code 2012, an employee who wants to unilaterally terminate a labour contract must have a reason consistent with the provisions of Article 37 of the Labour Code 2012 and must notify the employer in advance.
However, since the Labour Code 2019 (effective from January 1st, 2021), the employee has the right to unilaterally terminate the labour contract without reason, but must provide the following advance notice to the employer:
(a) At least forty-five (45) days’ advance notice if working pursuant to an indefinite term labour contract;
(b) At least thirty (30) days’ advance notice if working pursuant to a definite term labour contract with a duration from twelve (12) months to thirty-six (36) months;
(c) At least three (3) days’ advance notice if working pursuant to a definite term labour contract with a duration below twelve (12) months;
(d) In the case of a number of industries and trades and special jobs such as (i) Aircraft crew; aircraft technical maintenance staff and aviation repair staff; flight dispatch and flight operational staff; (ii) Enterprise managers as prescribed in the Law on Enterprises and in the Law on Management and Use of State Capital Invested in Production and Business in Enterprises; (iii) Crew working on Vietnamese ships operating overseas; and seafarers hired by Vietnamese enterprises to work on foreign seagoing vessels; (iv) Other cases stipulated by law, the amount of advance notice shall be implemented in accordance with Government regulations (Article 7 Decree 145/2020/ND-CP of the Government), specifically:
• At least 120 days in the case of a definite term labour contract or a labour contract with a term of twelve (12) months or more;
• At least a period equal to a quarter of the term of the labour contract in the case of a contract with a term of less than twelve (12) months.
The provision on advance notice is reasonable because the termination of the labour contract partly affects the business activities of the employer. The above regulation not only ensures the responsibilities of employees for the contract they have signed but also ensures that the employer can actively arrange replacement personnel to ensure business activities are not interrupted.
2. New regulations on the case where the employee has the right to unilaterally terminate the labour contract without advance notice.
Article 35.2 of the Labour Code 2019 provides for several cases where an employee has the right to unilaterally terminate the labour contract without advance notice, specifically:
(a) The employee is not assigned to the correct job or workplace or the working conditions agreed are not ensured, except in case of assigning the employee to do work other than that specified in the labour contract prescribed in article 29 of this Code;
(b) The employee is not paid in full or on time the wages due, except in case as a result of a force majeure event prescribed in article 97.4 of this Code;
(c) The employee is abused, beaten, or subject to abusive/defamatory words or acts, or to acts adversely affecting the health, dignity and honor of the employee committed by the employer; or is subject to labour coercion;
(d) The employee is sexually harassed in the workplace;
(e) A female employee is pregnant and must rest as prescribed in article 138.1 of this Code;
(f) The employee has reached the retirement age in accordance with article 169 of this Code unless the parties have some other agreement;
(g) The employer provided untruthful information pursuant to article 16.1 of this Code which adversely affected implementation of the labour contract.
II. For employer
1. Additional case where the emloyer has the right to unilaterally terminate the labour contract.
Compared with the Labour Code 2012, the Labour Code 2019 adds three more cases where the employer has the right to unilaterally terminate the labour contract in point dd, e, g Article 36.1 of the Labour Code 2019:
• The employee has reached the retirement age as prescribed in article 169 of this Code, except where there is some other agreement;
• The employee arbitrarily leaves the job [gives up his or her job] without a satisfactory explanation for a period of at least five (5) consecutive working days;
• The employee provided untruthful information as prescribed in article 16.2 of this Code when entering into the labour contract and this fact adversely affected recruitment of employees.
Together, when the employers wish to unilaterally terminate the labour contract, they must base on the reasons specified in Article 36 of the Labour Code 2019 and advance notice to the employee, except for cases in point d, e Article 36.1 of the Labour Code 2019.
2. Two cases the employer has the right to unilaterally terminate the labour contract without advance notice.
As mentioned above, the employer is not required to provide advance notice in the following two cases:
• The employee failed to attend the workplace on the expiry of the period prescribed in article 31 of this Code. Specifically, within fifteen (15) days after expiry of the term of suspension of performance of the labour contract and the labour contract is still valid, the employee failed to attend the workplace;
• The employee arbitrarily leaves the job without a satisfactory explanation for a period of at least five (5) consecutive working days.
3. Other changes:
The Labour Code 2019 extends the time limit that the employer must pay upon termination of the labor contract from 07 days to 14 days in Article 48.1 of the Labor Code 2019.
ADK & Co Vietnam Lawyers Law Firm