Can the employer dismiss an employee who voluntarily left the company?

Legal situation: I used to work as an accountant at *** LLC. During my work progress, there were some conflicts that led to my voluntary leaving on July 25, 2023. After that, I went back to work, but the security prevented me from returning to the company, and I received information that the company had terminated my employment. I mentioned that if I was dismissed by the company, they should have at least called me for a meeting. That afternoon, I received a message from the company's HR informing me of my dismissal. My question for the lawyer is, in the case where I left voluntarily, does the company have the right to dismiss me?

FDVN’s Opinion:

Thank you for sending your question to FVDN Law Firm (“FDVN”). Regarding your requests, after researching the legal provisions, we have the following opinion: 

1. Legal regulations on cases for dismissal:

According to Article 125 of Labor Code 2019, An employer may dismiss an employee for disciplinary reasons in the following circumstances:

“1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;

2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;

3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.

4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses.

Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations.”

In the case mentioned above, if the company dismisses an employee because the employee voluntarily left the job, they must meet the condition that the employee voluntarily left the job for 05 consecutive days within 30 days or 20 days within 365 days, calculated from the first day of voluntary leave without justified reasons. If you can prove that you left the job for only 1 day and then returned to work but were denied access to the company, it cannot be considered as you voluntarily leaving the job for termination purposes.

2. Procedure and steps for dismissal

The application of disciplinary measures to employees must be in line with the principles and procedural requirements stipulated in Article 122 of Labor Code 2019. The basis for the disciplinary action taken against the employee complying with the legal regulations of the employer essentially means demonstrating the fault of the employee. As per the detailed guidelines stipulated in Clause 1, Article 70 of Decree No. 145/2020/NĐ-CP, the employer shall “prepare a violation record and inform the internal employee representative organization of which the employee is a member, the employee’s legal representative if the employee is under 15. In case an employee’s violation is discovered after it is committed, evidence of such violation must be gathered.” 

Specifically, the disciplinary process for termination must follow the legal regulations and proceed through the following steps:

Step 1: When an employer detects a labor discipline violation at the time of the violation, they create a violation record and inform the grassroot labor representative organization where the employee is a member or the legal representative of the employee under 15 years old. If an employer discovers a labor discipline violation after the violation has occurred, they must collect evidence to prove the employee's fault.

Step 2: Within the time limit for disciplinary procedures, the employer shall hold a disciplinary hearing as follows:

a) At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants of the contents, time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. Make sure the participants receive the notification before the hearing takes place;

b) Upon receipt of the employer’s notification, the mandatory participants shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision;

c) The employer shall conduct the disciplinary hearing at the time and location regulated.

Step 3: Minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.

Step 4: Within the time limit for disciplinary procedures, the person having the power to initiate disciplinary procedure shall issue a disciplinary decision and send it to the mandatory participants.

Therefore, the notice via phone from the HR Department to you regarding the dismissal was not in accordance with the labor law regulations. The termination, as described, was not following the prescribed legal procedures and processes.

In cases of dismissal not in accordance with current labor laws, the employer has certain obligations:

+ The employer shall reinstate the employee in accordance with the original employment contract, and pay the salary, social insurance, health insurance and unemployment insurance premiums for the period during which the employee was not allowed to work, plus at least 02 months’ salary specified in the employment contract.

After the reinstatement, the employee must return the severance allowance or redundancy allowance (if any) to the employer.

Where there is no longer a vacancy for the position or work as agreed in the employment contract and the employee still wishes to work, the employer shall negotiate revisions to the employment contract.

+ In case the employee does not wish to return to work, in addition to the compensation, the employer shall pay a severance allowance in order to terminate the employment contract.

+ Where the employer does not wish to reinstate the employee and the employee agrees, in addition to the compensation and the severance allowance, both parties shall negotiate an additional compensation which shall be at least 2 months’ salary under the employment contract in order to terminate the employment contract.

The above is FDVN’s opinion based on research of legal provisions. We hope that FDVN’s advisory will be helpful to you. 

Hồ Thị Thương - FDVN Law Firm

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