Is it legal for employees to terminate unilaterally the labor contract?

Legal situation:

Please advise me, my employee gave notice of his resignation and then quit on the day of the announcement. Up to now, the employee has been absent from work for ten days. My Company wants to terminate the labor contract with such employee, shall my Company terminate on the basis that the employee unilaterally terminates the labor contract illegally or the Company unilaterally terminates because the employee arbitrarily absent for 05 days or more? Sincerely thank you.

Answer:

Thank you for trusting and sending your consulting request to FDVN Law Firm (“FDVN”). For your request, after researching the legal provisions, we would like to send you some references as follows:

Article 35 of Labor Code 2019 stipulates that an employee has the right to terminate unilaterally the labor contract, in which in clause 2 of this Article 35 prescribing cases where an employee shall have the right to unilaterally terminate the labor contract without prior notice if he/she:

• Is not assigned to the work or workplace or not provided with the working conditions as agreed in the labor contract, except for the cases specified in Article 29 of Labor Code 2019;
• Is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of Labor Code 2019;
• 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;
• Is sexually harassed in the workplace;
• Is pregnant and has to stop working in accordance with Clause 1 Article 138 of Labor Code 2019;
• Reaches the retirement age specified in Article 169 of Labor Code, unless otherwise agreed by the parties; or
• Finds that the employer fails to provide truthful information in a manner that affects the performance of the labor contract.

You need to review the reason for the employee’s termination of the labor contract to determine whether the employee’s case is one of the cases of termination of the labor contract without prior notice or not. In cases of not falling into one of the above cases, employees must notify the employer in advance at least 45 days in case of an indefinite-term employment contract; at least 30 days in case of a labor contract with ta fixed term of 12-36 months; at least 03 working days in case of a labor contract with a fixed term of under 12 months.

Article 39 of Labor Code 2019 prescribes that the unilateral termination of a labor contract shall be illegal if it does not comply with regulations of Article 35 of Labor Code 2019. Therefore, if employees terminate the labor contract but violate the notice period prescribed by law, they shall be deemed to be illegal unilateral termination of labor contracts.

Therefore, in this case, your Company might terminate the labor contract with the employee because the employee unilaterally terminates the labor contract.

Above is FDVN LAW FIRM’s opinion for your consulting requests based on studying the relevant legal provisions. Hopefully, FDVN’s advice would be helpful to you.

Attorney Duyên Trần – FDVN Law Firm 

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