The unlawful unilateral termination of a labour contract has a significant impact on the rights and livelihood of the employee. Therefore, when facing such termination, the employee needs to ascertain its legality to request relevant individuals, authorities, and organizations to safeguard their rights. To determine the legality of the employer’s unilateral termination of the labour contract, the employee should rely on legal provisions and legitimate internal documents of the enterprise.
1. Assessing the legality of the basis for unilateral termination used by the employer
The employee should evaluate whether the basis used by the employer for the unilateral termination complies with legal regulations. The employer is only entitled to unilaterally terminate a labour contract under the cases stipulated in Article 36(1) of the Labor Code 2019 (“LC”). If the employer’s unilateral termination does not meet the requirements of Article 36(1) LC, it can be considered an unlawful unilateral termination.
The situations in which the employer is entitled to unilaterally terminate the contract are as follows:
(a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfilment of duties established by the employer.
(b) The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term labour contract, for 06 consecutive months in the case of a labour contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of a labour contract with a fixed term of fewer than 12 months.
(c) Due to natural disasters, fires, dangerous epidemics, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted.
(d) The employee is not present at the workplace after the time limit specified in Article 31 LC (Within 15 days from the expiry of the suspension period of the labour contract, the employee shall be present at the workplace and the employer shall reinstate the employee under the labour contract if it is still unexpired unless otherwise agreed by both parties or prescribed by law).
(e) The employee reaches the retirement age specified in Article 169 LC unless otherwise agreed by the parties (Refer to Decree No. 135/2020/ND-CP on retirement age regulations).
(f) The employee is not present at work without acceptable excuses for at least 05 consecutive working days.
(g) The employee fails to provide truthful information during the conclusion of the labour contract in accordance with Article 16(2) LC in a manner that affects recruitment (The employee shall provide the employer with truthful information about his/her full name, date of birth, gender, residence, educational level, occupational skills and qualifications, health conditions and other issues directly related to the conclusion of the labour contract which are requested by the employer).
2. Assessing the legality of unilateral termination based on the enterprise’s internal documents
As the law does not specify the particular procedure that the employer needs to follow when unilaterally terminating a labour contract, the procedure can be stipulated within the enterprise’s internal documents.
The employee should delve into internal documents related to the employer’s unilateral termination of labour contracts, such as labour regulations, collective labour agreements, the criteria for assessment of employees’ fulfilment of duties, etc. This is to ascertain whether the enterprise has adhered to the correct procedure, whether any actions contrary to the provisions of these internal documents have been taken, and whether any employee rights have been omitted when unilaterally terminating labour contracts.
Currently, enterprises often unilaterally terminate labour contracts with the reason that the employee frequently fails to fulfil job duties as per the contract. However, for such cases, the employer needs to establish the criteria for assessment of employees’ fulfilment of duties in compliance with legal regulations. If the employer does not issue the criteria or issues it not in accordance with legal provisions, the employer cannot unilaterally terminate the labour contract based on the reason that the employee frequently fails to fulfil job duties. The law stipulates that these criteria issued by the employer must involve seeking the opinion of the employee representative organization at the workplace if such representation exists in the enterprise.
3. Assessing the legality of the employer’s prior notification of unilateral termination of the labour contract to the employee
The employee needs to determine whether the employer has provided prior notice of the unilateral termination of the labour contract to the employee in compliance with legal provisions. Notification requirements are stated in Clause 2 and Clause 3 Article 36 LC.
For unilateral termination under situations (a), (b), (c), (e), and (g) mentioned in Part 1 of this article, the employer must notify the employee as follows:
(i) At least 45 days for indefinite-term contracts.
(ii) At least 30 days for fixed-term contracts with a term of 12 to 36 months.
(iii) At least 03 working days for fixed-term contracts with a term of fewer than 12 months and the situation described in (b) in Part 1 of this article.
(iv) In some specific industries, trades, or jobs, the notification period complies with Government regulations (Refer to Article 7 of Decree No. 145/2020/ND-CP detailing and guiding the implementation of certain provisions of the Labor Code regarding labour conditions and labour relations).
For unilateral termination under situations (d) and (f) mentioned in Part 1, the employer is not required to provide prior notice to the employee.
Above is the article “Assessing the legality of the employer’s unilateral termination of a labour contract” sent by TNTP to the readers. In case of any inquiries, please contact TNTP for assistance.