1) Legal grounds

– Labor Code 2019.

– Decree 145/2020/ND-CP detailing and guiding the implementation of a number of articles of the labor code on labor conditions and labor relations.

2) Cases in which the employer is unilaterally terminated

The employer may unilaterally terminate all labor contracts in the following cases:

– Firstly, the employee regularly fails to complete the work according to the labor contract (determined according to the criteria for assessing the level of work completion according to the regulations of the employer).

Regulations on assessment of job completion promulgated by the employer must consult the employee representative organization at the grassroots level for the place where there is a representative organization of employees at the grassroots;

– Second, an employee suffering from an illness or an accident has received treatment for 12 consecutive months, for employees working under an indefinite term labor contract, or has received treatment for 6 consecutive months, for employees. working under a definite-term labor contract with a term from 12 months to 36 months or more than half the term of the labor contract for employees working under a definite-term labor contract with a term of less than 12 months but the working capacity has not recovered.

– Thirdly, due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation, downsizing of production and business at the request of competent state agencies, but the employer has tried everything. overcome, but still forced to reduce the working place for employees who quit their jobs.

– Fourth, the employee is not present at the workplace after 15 days from the expiration of the period of temporary suspension of the performance of the labor contract based on Article 31 of the Labor Code 2019.

– Fifth, the employee has reached the retirement age as prescribed in Article 169 of the Labor Code 2019, unless otherwise agreed;

– Sixth, the employee voluntarily quits his job without a legitimate reason for 05 consecutive working days or more;

The employee has provided dishonest information about his/her full name, date of birth, gender, place of residence, education level, occupational skill level, health status and other related issues. directly related to the conclusion of the labor contract requested by the employer according to the provisions of Clause 2, Article 16 of this Code when entering into the labor contract, affecting the recruitment of employees.

3) The employer has the right to unilaterally terminate the labor contract but must notify the employee in advance

In case the employer unilaterally terminates the labor contract but must give advance notice to the employer within a reasonable time, the details shall be as follows:

– Firstly, the employee who regularly fails to complete the work according to the labor contract is determined according to the criteria for assessing the level of work completion in the employer’s regulations.

Regulations on assessment are issued by the employer, but must consult the representative organization of employees at the grassroots level for the place where there is a representative organization of employees at the grassroots;

– Second, an employee suffering from an illness or an accident has received treatment for 12 consecutive months for an employee working under an indefinite term labor contract or has received treatment for 6 consecutive months for an employee working under an indefinite term labor contract. definite-term labor contract with a term of from 12 months to 36 months, or over half the term of the labor contract, for people working under a definite-term labor contract with a term of less than 12 months, but the working capacity have not recovered. When the worker’s health recovers, the employer will consider continuing to enter into a labor contract with the employee;

– Thirdly, due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation or narrowing of production and business at the request of competent state agencies, the employer has sought all measures to remedial measures but still forced to reduce the workplace;

– Fourth, the employee reaches the retirement age as prescribed in Article 169 of the Labor Code 2019, unless otherwise agreed;

– Fifth, employees provide dishonest information about their full name, date of birth, gender, place of residence, education level, vocational skill level, health status and problems. other directly related to the conclusion of a labor contract that the employer requires as prescribed in Clause 2, Article 16 of this Code when entering into a labor contract, affecting the recruitment of employees.

The period when the employer needs to give advance notice includes:

– For an indefinite term labor contract: At least 45 days;

– For labor contracts with a definite term from 12 months to 36 months: At least 30 days;

– For a definite-term labor contract of less than 12 months and for the case specified at Point b, Clause 1, Article 36 of the Labor Code 2019, the employee suffers an illness or an accident and has received treatment for a long time but not likely to recover: At least 03 working days

– For some specific industries, trades and jobs, the notice period shall comply with the Government’s regulations based on Article 7 of Decree No. an indefinite term labor contract or a definite term labor contract of 12 months or more; At least equal to one-quarter of the term of the labor contract, for labor contracts with a term of less than 12 months. Specific industries, occupations and jobs include:

The employee is a member of the flight crew; aircraft maintenance technicians, aviation repair technicians; flight dispatchers and operators;

The employee is the manager of the enterprise in accordance with the Law on Enterprises; Law on management and use of state capital invested in production and business in enterprises;

Crew members of crew members working on Vietnamese ships operating overseas; seafarers who are leased by Vietnamese enterprises to work on foreign ships;

And other cases as prescribed by law.

For example: On September 3, 2021 Mr. A (director of AA company) recruited Mr. T to work and signed an indefinite-term labor contract with a salary of 10,000,000 VND/month. so will pay for employees who have foreign language ielts 7.0. Mr. T at the interview also provided information that he has an ielts 7.5 degree, but he has not yet obtained a degree, so he will provide it later. On October 3, 2021, the company asked Mr. T to add documents in foreign languages, but Mr. T always found excuses to delay the provision of ielts, he only provided B1 in foreign languages. Accordingly, on October 10, 2021, the company announced unilaterally terminating the labor contract with Mr. T. Mr. T must officially resign after 45 days from the date of receiving the notice.

4) Where the employer is not allowed to unilaterally terminate the labor contract

The employer may not unilaterally terminate the labor contract in the following cases:

– Firstly, in case the employee falls ill or suffers from an accident or occupational disease that is being treated or nursed under the direction of a competent medical examination and treatment establishment, unless the employee is sick, The accident has been treated for 12 consecutive months for people working under an indefinite term labor contract or has been treated for 06 consecutive months for a person working under a definite term labor contract with a definite term from 12 months to 36 months or more than half the term of the labor contract, for employees working under a definite term labor contract with a term of less than 12 months but their working capacity has not yet recovered as specified at Point b, Clause 1 of this Article. 36 of the Labor Code 2019.

– Second, in case the employee is taking annual leave, taking separate leave and other leave agreed by the employer.

– Third, female employees are pregnant; the employee is on maternity leave or raising a child under 12 months old.

5) Responsibilities of the employer when unilaterally terminating the labor contract

– Within 14 working days from the date of termination of the labor contract, the two parties are responsible for paying in full all amounts related to the interests of the two parties, except for the following cases where it may be prolonged but not more than 30 days:

The employer who is not an individual terminates the operation; Employers change structure, technology or for economic reasons; Split, split, merge, merge; sale, lease, change the type of business; transfer of ownership, right to use assets of enterprises or cooperatives; Due to natural disaster, fire, enemy sabotage or dangerous disease.

– Wages, social insurance, health insurance, unemployment insurance, severance allowance and other benefits of employees who have agreed on collective labor agreements and labor contracts are prioritized for payment in in case an enterprise or cooperative is terminated, dissolved, or bankrupt.

– The employer is responsible for completing the procedures to confirm the time of payment of social insurance, unemployment insurance and return it together with the original of other documents if the employer has kept it from the employee. motion; Provide copies of documents related to the employee’s working history if requested by the employee. The cost of copying and sending documents is paid by the employer.

Above is Khoa Tin‘s advice on: “When can the employer unilaterally terminate the labor contract?”

In case customers have unclear problems or need to discuss further, please call us immediately at 0983.533.005 for a free consultation.

Best regards./