When an employee unilaterally terminates a labor contract in Vietnam by legally resigning, he or she must notify the employer at least 3 to 45 days in advance, or depending on the company’s labor rules or regulations of the Government if they are working in the State sector. Conversely, if the employer dismisses the employee through the form of dismissal, is there a need for prior notice?
According to the current provisions of the Labor Code 2019, there is no specific regulation on whether the dismissal must be notified in advance or not. However, when the employer wants the employee to leave the job through the form of dismissal, the prerequisite is that they must notify the employee of the incident.
This is because without notice, employees will still go to work as usual because they do not receive notice that they have been laid off. In addition, because the form of dismissal is the heaviest form of labor discipline among the four forms of labor discipline, to come to this stage of dismissal, the employer must also notify the employee of the 3 first forms of labor discipline, in order.
Regulations on the dismissal of employees in Vietnam
Article 125 of the Labor Code 2019 stipulates that the disciplinary form of dismissal is applied by the employer in the following cases:
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 the Labor 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.
Other forms for employees to leave work
In addition to the form of labor discipline, which is dismissal, the employer can also dismiss the employee through unilateral termination of the labor contract.
Pursuant to Clause 2, Article 36 of the Labor Code 2019, besides the case where the employee is not present at the workplace after the prescribed time limit of 15 days from the expiry date of the temporary suspension of the performance of the labor contract and the employee voluntarily quits their job without a legitimate reason for 05 consecutive working days or more, in other cases, the employer is obliged to notify the employee in advance a specific number of days, including:
a) At least 45 days for an indefinite term labor contract;
b) At least 30 days for a definite-term labor contract with a term of between 12 and 36 months;
c) At least 03 working days for a definite-term labor contract with a term of less than 12 months and for the case specified at Point b, Clause 1 of this Article;
d) For a number of specific industries, trades and jobs, the time limit for advance notice shall comply with the Government’s regulations.