Attorney Nguyen Thanh Ha is the chairman of SBLAW and a litigation attorney with 20 years of experience. Attorney Nguyen Thanh Ha has experience in arbitration as a lawyer protecting the rights of plaintiffs and defendants. Attorney Ha is also an arbitrator at VIAC, participating in resolving commercial business disputes. Attorney Nguyen Thanh Ha is also a visiting lecturer on Commercial Arbitration at the Judicial Academy under the Ministry of Justice of Vietnam.
Question: Employee A of the company is currently under review and investigation for responsibility related to the act of installing and using unlicensed software, causing damage to the company. However, this employee has submitted a resignation letter since the beginning of September. In this case, does the company have the right to refuse the employee’s resignation until the investigation and disciplinary process are completed?
Answer: Whether the company has the right to refuse the employee’s resignation until the completion of the investigation and disciplinary process will depend on the contract that Employee A has signed with the Company.
(i) Case 1: The Company and Employee A signed a vocational training contract If the Company and Employee A signed a vocational training contract under Article 62 of the 2019 Labor Code, the termination of the labor relationship must comply with the commitments recorded in this contract. In practice, vocational training contracts are often accompanied by obligations requiring the employee to work for the enterprise for a certain period of time after completing the training program. Therefore, if Employee A has not yet fulfilled all obligations under the vocational training contract, the Company has the right to refuse the resignation request or require Employee A to reimburse the training expenses.
(ii) Case 2: The Company and Employee A only signed a labor contract (without a vocational training contract) According to Article 35 of the 2019 Labor Code, Employee A is entitled to unilaterally terminate the labor contract provided that advance notice is given to the company within the following time limits: a) At least 45 days for an indefinite-term labor contract; b) At least 30 days for a definite-term labor contract with a term of 12 to 36 months; c) At least 03 working days for a definite-term labor contract with a term of less than 12 months. The fact that the Company is conducting an investigation is not considered a legal ground to restrict or prevent the employee’s right to unilaterally terminate the contract. Therefore, in this case, if Employee A fulfills the advance notice obligation in accordance with the law, the Company is obliged to accept and proceed with the termination procedures of the labor contract as requested by Employee A
Consultation: labor law services
