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What is the unilateral termination of the labor contract?

Mon, 12 Mar 2018 10:53:02 AM GMT + 7    Print   Email   Share:

(Chinhphu.vn) – Ms. Anh Tuyet (in Dong Thap province) works under the labor contract (labor contract) with a one-year term. She applied for resignation after the expiration of the contract and her application for resignation was done before 30 days, signed by the director agreed to solve.

 

According to the Human Resources Department's announcement, pursuant to Decree 05/2015 / ND-CP, her case was unilaterally terminated and half-month salary would be deducted.

 

Ms.Tuyet would like to ask, is the announcement of her company’s Human Resource correct?

The Lawyer Tran Van Toan, the Khanh Hung Lawyer's Office – the Hanoi Bar Association responded to Ms. Tuyet's question as follows:

Luật sư Trần Văn Toàn, Văn phòng luật sư Khánh Hưng - Đoàn luật sư Hà Nội trả lời vấn đề bà Tuyết hỏi như sau:

Under Clause 1, Article 37 of the Labor Code, employees working under the definite term labor contract shall have the right to unilaterally terminate the labor contract ahead of time in the following cases:

He/she is not assigned to the job or workplace or is not given the working conditions as agreed in the labor contract;

- He/she is not paid in full or on time as agreed in the labor contract;

- He/she is maltreated, sexually harassed or is subject to forced labor;

- He/she is unable to continue performing the labor contract due to personal or family difficulties;

- He/she is elected to perform a full-time duty in a people-elected office or is appointed to hold a position in the state apparatus;

- A female employee who is pregnant and must take leave as prescribed by a competent health establishment;

- If he/she is sick or has an accident and remains unable to work after having received treatment for 90 consecutive days, in case he/she works under a definite-term labor contract, or for a quarter of the contract’s term, in case he/she works under a labor contract for a seasonal job or a specific job of under 12 months.

Point b, Clause 2, Article 37 of this Law has stipulated, When unilaterally terminating the labor contract as prescribed in Clause 1 of this Article, The employee must inform the employer at least 30 days in advance if the labor contract is the  a definite-term labor contract

After 30 days from the date the employee informs the employer in writing, he / she will terminate the contract before the expiry date, if the employer disagrees or refuses or have no idea, the employee has the right to unilaterally terminate the labor contract. The fact that the employee unilaterally terminates the labor contract in this case is lawful.

According to Article 41 of the Labor Code, the case of termination of the labor contract in contravention of the provisions of Article 37 of this Code is unilaterally terminating the labor contract in contravention of law.

Obligations of an employee when unilaterally terminating a labor contract illegally

Article 43 of the Labor Code has stipulated the obligation of the employee to unilaterally terminate the labor contract as follows:

- Not to be entitled to a severance allowance and to compensate the employer half of a month’s wage in accordance with the labor contract.

- If violating the provision on the time of prior notice, to compensate the employer an amount equivalent to the employee’s wage for working days without prior notice.

In case Ms. Anh Tuyet is performing a labor contract with a one-year term, she has a resignation letter (30 days notice period) and has been approved by the director to settle the labor contract ahead of time. As both employers and employees agree to terminate the labor contract, this is the case where the two parties agree to terminate the labor contract.

As the two parties had agreed to terminate the labor contract, Ms. Anh Tuyet did not unilaterally terminate the labor contract, so it is not putting the  matter of considering Ms. Tuyet to unilaterally terminate the labor contract in accordance with the law or in contravention of the law.

The staff of the Human Resources Department informed Ms. Anh Tuyet that she would be deducted half of a month's salary when the labor contract was terminated is not correct according to regulations.

          The Lawyer Tran Van Toan,

the Khanh Hung Lawyer's Office - the Hanoi Bar Association

 

  • By : Online Newspaper of the Government / Translator: HaiYen-Bizic

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