To ensure the rights and interests of workers and employers, the Labor Code 2012 specifies the circumstances in which unilateral termination of labor contracts may be made.
UNILATERAL TERMINATION OF LABOR CONTRACTS
Labor relations between employers and employees are formed on the basis of labor contracts. Thus, labor relations end only when labor contracts end or when one of the parties unilaterally terminate labor contracts as stipulated in Clauses 9 and 10 of Article 35 of Labor Code 2012.
In practice, in order to cut spending and increase profits, employers often abuse their rights in organizing and executing, as well as taking advantage of workers’ ignorance about the law to unilaterally terminate labor contracts. Therefore, to limit this situation, the law has enacted detailed regulations to ensure the interests of workers.
EMPLOYERS’ LEGAL RIGHTS TO UNILATERALLY TERMINATE LABOR CONTRACTS
According to Clause 1, Article 38 of the Labor Code 2012, employers are entitled to unilaterally terminate labor contracts in certain cases as follows:
- The employee regularly fails to complete the works according to the labor contract;
- The employee suffering from sickness or accidents:
+ Cannot recover after 12 consecutive months of treatment for labor contracts without fixed term,;
+ After 06 months for employees working under fixed-term labor contracts, or over one half of the contract term for employees working under casual labor contract or regular labor contract with term under 12 months.
+ When the employee recovers, he/she may be considered to conclude the new contract;
- The employer have to reduce the production and vacancies after taking all measures to overcome the consequences from natural disasters, fire or other force majeure;
- The employee fails to be present at the workplace after the expiration of labor contract suspension.
Besides, there are some cases where the employer is not entitled to unilaterally terminate the labor contract, especially in the the cases of female employees who are seven months pregnant or sixth months pregnant if they work in deep-lying, remote or border areas, etc. or raising children under 12 months old.
TIME LIMIT FOR NOTIFICATION OF UNILATERAL TERMINATION OF LABOR CONTRACTS
Thus, employers who want to unilaterally terminate labor contracts must prove that their reasons are legitimate. However, even if there are grounds for unilaterally terminating labor contracts, employers don’t have the right to immediately terminate labor contracts but must inform employees in advance:
- At least 45 days prior to the termination of the labor contract without a definite term;
- At least 30 days for labour contracts with definite terms;
- At least three days prior to the termination of labor contracts for seasonal jobs or specific jobs which last less than one year.
OBLIGATIONS OF EMPLOYERS WHEN UNILATERALLY TERMINATING LABOR CONTRACTS IN AN ILLEGAL MANNER
When unilaterally terminating labor contracts in an illegal manner, employers will cause adverse consequences for employees such as unemployment, loss of income, thereby affecting their families and psychology. Accordingly, according to Article 42 of the Labor Code 2012, the employer must re-employ the employee under the concluded labor contract.
In addition, the employee is entitled to salary, medical insurance and social insurance for the days the employee is banned from working plus the salary of at least 2 months under the labor contract. However, in case the employer does not wish to re-employ the employee and the employee agrees, both parties shall reach the agreement on the extra compensation equal to the salary of at least 02 months under the labor contract apart from the compensation.
If no vacancy for the position in the labor contract is available but the employee still wishes to continue working, both parties must negotiate to amend and supplement the labor contract. For violations of the advance notice time, the employee must be paid a compensation equivalent to the his/her salary of the unnoticed days.
Violation of one of the above grounds is considered illegal unilateral termination of labor contracts. As a result, the employer must be responsible before the law and before the laborers. Thus, the employer must strictly comply with the provisions of the law on this matter.
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