HOW CAN EMPLOYEES LAWFULLY TERMINATE THE LABOUR CONTRACT WITHOUT CONTRACT COMPENSATION?

During the working progress, sometimes because of unexpected reasons, the employee is forced to terminate the labour contract before the contract term. However, there are some employees, who do not understand the provisions of the law, illegally unilaterally terminating the contract; so that they not only have to pay a large amount of compensation to the employer, but also do not receive any benefits after leaving the job. In this article, Lac Duy & Associates will provide readers with options that employees can use to terminate their labour contracts early without having to compensate the enterprises as prescribed:

Option 1: Agreement to terminate the labour contract

It can be said that this is the best option for both employees and employers. The employee should proactively contact the employer and present their wishes along with the reason for the termination of the employment contract before the contract term. If it is considered that the reason for the termination of the labour contract from employee is reasonable, the two parties will enter into an agreement on the termination of the labour contract. Employees will be entitled to receive the severance allowance and unemployment insurance as prescribed in Article 46 of the Labour Code 2019 and Article 49 of the Employment Law 2013. Noted that employees and employers should establish Agreement to terminate the labour contract in writing to have documented evidence of the termination of the labour contract to prevent future disputes.

Option 2: Unilaterally terminate the labour contract according to the provisions of Article 35 of the Labour Code 2019

Article 35 of the Labour Code 2019 provides:

“Article 35. The right of an employee to unilaterally terminates the employment contract

1. An employee shall have the right to unilaterally terminate the employment contract, provided he/she notices the employee in advance:

a) At least 45 days in case of an indefinite-term employment contract;

b) At least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

c) At least 03 working days in case of an employment contract with a fixed term of under 12 months;

d) The notice period in certain fields and jobs shall be specified by the government.

2. An employee is shall have the right to unilaterally terminate the employment contract without prior notice if he/she:

a) Is not assigned to the work or workplace or not provided with the working conditions as agreed in the employment contract, except for the cases specified in Article 29 of this Labour Code;

b) Is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.

c) Is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity or honour; is forced to work against his/her will;

d) Is sexually harassed in the workplace;

dd) Is pregnant and has to stop working in accordance with Clause 1 Article 138 of this Labour Code.

e) Reaches the retirement age specified in Article 169 of this Labour Code, unless otherwise agreed by the parties; or

g) Finds that the employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labour Code in a manner that affects the performance of the employment contract.

It can be seen from above provisions that the employee has the right to unilaterally terminate the contract of employment, but it does not mean that the employee can intentionally quit at any time. The employee shall have the right to unilaterally terminate the employment contract, they must:

• Notices the employee in advance:
  • At least 45 days in case of an indefinite-term employment contract;
  • At least 30 days in case of an employment contract with a fixed term of 12 – 36 months;
  • At least 03 working days in case of an employment contract with a fixed term of under 12 months;
  • The notice period in certain fields and jobs shall be specified by the government.

• Or 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 employment contract, except for the cases specified in Article 29 of this Labour Code;
  • Is not paid adequately or on schedule, except for the case specified in Clause 4 Article 97 of this Code.
  • Is maltreated, assaulted, physically or verbally insulted by the employer in a manner that affects the employee’s health, dignity or honour; 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 this Labour Code.
  • Reaches the retirement age specified in Article 169 of this Labour Code, unless otherwise agreed by the parties; or
  • The employer fails to provide truthful information in accordance with Clause 1 Article 16 of this Labour Code in a manner that affects the performance of the employment contract.

If the employee unilaterally terminates the contract in accordance with the law and he/she has enough conditions to receive severance allowance, the employee will be paid a severance allowance by the company. In addition, the employee can apply for unemployment benefits according to the provisions of Article 49 of the Employment Law 2013.

Above is information on early termination of labour contracts. In case you need detailed information or other information in a related field, readers can contact Lac Duy & Associates for timely advice and support.