Regulations on unexcused leave including public holidays in Vietnam

If an employee in an enterprise voluntarily leaves work without permission for 5 consecutive working days according to the company’s regulations on the working schedule from Monday to Friday, but the Wednesday of that week is a public holiday as prescribed under Vietnamese law, can an employer unilaterally terminate a labor contract with an employee?

According to Clause 1, Article 36 of the 2019 Labor Code, an employer can unilaterally terminate a labor contract with an employee if the employee voluntarily quits without a valid reason within 05 continuous working days or more.

In addition, Clause 4, Article 125 of the Labor Code 2019 also stipulates that the employer can apply the form of labor discipline dismissal to the employee if the employee voluntarily quits for 5 cumulative days within 30 days or 20 cumulative days within 365 days from the first day of voluntarily quitting without a valid reason.

Cases that are considered to have legitimate reasons include natural disasters, fires, sick individuals and relatives certified by competent medical examination and treatment establishments, and other cases specified in labor regulations.

Laying off employees with 5 consecutive days off

Thereby, according to the law, the voluntary leave of 5 consecutive days in a week, including 1 day that is a legal holiday, will not be considered 5 consecutive days of unexcused leave.

Thus, in the case that the employee takes 5 days off including holidays, it will not be possible to apply the form of unilateral termination of the labor contract.

Even if the employer wants to apply the dismissal discipline, it is not possible because officially, the employee has only taken 4 days of accrual leave. If the next Monday, the employee still does not come to work, the employer can apply the discipline of dismissal for taking 5 days off accumulated in 30 days.

If the employer wants to apply the regime to unilaterally terminate the labor contract with the employee, in this case, they must wait until the end of the Wednesday of the second week, that is, when the employee is absent on Thursday and Friday of week 1, along with Monday, Tuesday, and Wednesday of week 2 (eligible for 5 consecutive days of unexcused leave).

In reality, an employee’s unannounced leave will greatly affect the business operation of the enterprise. Thereby, before taking leave or quitting, employees should follow the law and the enterprise’s labor rules and notify the employer to avoid affecting the interests of both parties.

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