Question:
Is it legally justified for Company F to reject the request of employee H to receive her salary and return her personal documents after she unilaterally terminated her fixed-term labor contract?
Answer:
According to Point c, Clause 1, Article 35 of Labor Code 2019, effective from January 1, 2021, it is stipulated that employees have the right to unilaterally terminate a fixed-term labor contract by providing notice to the employer at least 3 working days in advance if the contract has a term of less than 12 months.
In the case of employee H, she submitted her resignation letter to the company three working days before officially quitting her job. Therefore, her decision to terminate the labor contract is in accordance with the law.
Article 48 of the Labor Code outlines the following:
“1. Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may be extended, but shall not exceed 30 days:
a) Shutdown of business operation of the employer that is not a natural person;
b) Changes in the organizational structure, technology or changes due to economic reasons;
c) Full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative;
d) Natural disasters, fire, hostility or major epidemics.
2. Priority shall be given to payment of the employees’ salaries, social insurance, health insurance, unemployment insurance, severance allowance and other benefits under the collective bargaining agreement and employment contracts in case of shutdown, dissolution or bankruptcy of an enterprise or cooperative.
3. The employer has the responsibility to:
a) Complete the procedures for verification of duration of participation in social insurance and unemployment insurance, return them and original copies of the employee’s other documents (if any);
b) Provide copies of the documents relevant to the employee’s work if requested by the employee. The employer shall pay the cost of copying and sending the documents.”
Based on the above provisions, Company F’s refusal to pay salary and return documents to employee H is contrary to legal requirements. Employee H can submit a resolution request to the Department of Labor, War Invalids, and Social Affairs, and request a conciliator to mediate the matter. If not satisfied with the mediation decision, employee H can file a complaint with the District People’s Court where the company is located, demanding the return of her documents.
Question:
Mr. D has signed an indefinite-term labor contract with a foreign company. He has been working at this company for 2 years. Now, Mr. D wants to terminate the labor contract. Can he do so, and if yes, does he need to compensate the company in any way?
Answer:
According to the provisions of Clause 1, Article 45 of the Labor Code 2019, an employee working under an indefinite-term labor contract has the right to unilaterally terminate the labor contract at any time without a reason and must notify the employer at least 45 days in advance.
Therefore, Mr. D can certainly terminate the labor contract, but he must notify Company D at least 45 days in advance. If Mr. D violates the notice period requirement, he will not be entitled to the severance allowance and must compensate the company with half a month’s salary according to the labor contract and an amount equivalent to the salary according to the labor contract for the days not notified in advance, as stipulated in Article 40 of the Labor Code 2019. Additionally, if during the period before termination Mr. D received training costs covered by the company, he must reimburse those costs upon terminating the labor contract.
Question:
Ms. B works for Company X under a fixed-term labor contract for 6 months. According to the agreement in the labor contract, the company will pay Ms. B’s salary on the 1st day of the lunar calendar each month. However, the company always pays the monthly salary later than stipulated in the contract. Ms. B has been working for 3 months. She decides to submit a resignation letter and not work at the company immediately after submitting the letter. Is Ms. B’s termination of the contract legal? Will Ms. B be entitled to the severance allowance?
Answer:
According to Clause 2, Article 35 of the Labor Code 2019, effective from January 1, 2021, an employee has the right to unilaterally terminate the labor contract without prior notice to the employer if the full salary is not paid or the salary is not paid on time, except in cases of force majeure where the employer has made every effort but cannot pay the salary on time.
– In this situation, since Company X consistently pays the salary late, Ms. B has the right to unilaterally terminate the labor contract without prior notice to Company X.
– Since Ms. B has worked for the company for only 3 months (less than 12 months), she is not entitled to the severance allowance according to Article 46 of the Labor Code 2019.
– According to Article 48 of the Labor Code 2019, within 14 working days from the date of termination of the labor contract, both parties are responsible for fully settling the amounts related to the rights of each party, except in cases where the period can be extended but not exceeding 30 days. The mentioned amounts may include outstanding salaries, payment for the days off as stipulated in the Labor Code 2019.
– Company X is also responsible for completing the procedures to confirm the duration of social insurance and unemployment insurance contributions and returning the original documents if Company X has kept them from Ms. B. They must provide copies of relevant documents regarding Ms. B’s work process upon her request. The cost of copying and sending documents is borne by Ms. B.
Question:
Mr. H was recruited to work at Company X under a fixed-term labor contract for 36 months. According to the agreement in the contract, Mr. H was hired for the position of quality control inspector (QCI). However, after 3 months of working at the company, he was assigned to perform the tasks of a cargo handler. Mr. H has repeatedly requested the company’s Director to assign him tasks according to the contract, but his requests were not resolved, and no explanation was given. Mr. H resigned from the company without prior notice. Is Mr. H’s unilateral termination of the labor contract considered illegal?
Answer:
Clause 2, Article 35 of the Labor Code 2019, which became effective from January 1, 2021, states: “An employee is shall have the right to unilaterally terminate the employment contract 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 Labor Code.”
Article 29 of the Labor Code 2019 stipulates: “In the event of sudden difficulties such as natural disasters, fire, major epidemics, implementation of preventive and remedial measures for occupational accidents or diseases, electricity and water supply failures, or for reasons of business and production demands, the employer may temporarily assign an employee to perform a work which is not prescribed in the employment contract for an accumulated period of up to 60 working days within 01 year, unless otherwise agreed in writing by the employee.“
Company X reassigned Mr. H to perform different tasks for more than 60 working days (3 months) without obtaining his written consent. Therefore, Mr. H has the right to unilaterally terminate the labor contract without prior notice to Company X. Mr. H’s resignation is not considered an illegal unilateral termination of the labor contract.
Question:
Ms. T is an accountant for Company X under an indefinite-term labor contract. Now, Ms. T has gotten married and moved to another city to live. Can Ms. T terminate the labor contract with Company X?
Answer:
According to Clause 1, Article 35 of the Labor Code 2019, which became effective from January 1, 2021, 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.
Since Ms. T is working for Company X under an indefinite-term labor contract, if she wishes to resign, she can unilaterally terminate the labor contract but must provide Company X with a notice period of at least 45 days in advance.
