Question:
The employee missed his shift for 7 days and the Company could not contact him. In this case, can the Company email the employee to request to terminate the contract because he has not appeared at work for 7 days and invite you to come and complete the resignation procedure?
Answer:
The company should not send an email to the Employee to unilaterally terminate the labor contract without determining the reason for the employee's resignation.
According to the provisions of Point e Clause 1 Article 36 Labor Code 2019 and Article 7 Decree No. 145/2020/ND-CP, if the Employee voluntarily quits his/her job for at least 05 consecutive working days AND without acceptable excuses. (Justified reasons include natural disasters, fires; the employee or his/her family member suffers from illness with a certification by a competent health facility; and other reasons as stipulated in the internal labor regulations – Clause 4 Article 125 Labor Code 2019), the employer has the right to unilaterally terminate the labor contract.
Therefore, if the employee can prove that he/she does not come to work at the company for the above reasons, the company does not have the right to unilaterally terminate the labor contract.
Proposed plan:
Firstly, the company should contact (by email) asking the employee to verify the reason for not coming to work. If the employee does not respond as requested, the company will send a paper copy of the request explaining the reason for leave to the employee's registered place of residence. In case the employee continues to not respond, the days that the employee does not go to work are considered personal leave without pay. When employees who neither work nor receive salary for 14 working days or more in a month are not required to pay social insurance premiums in that month, except cases of maternity leave, the company makes a notice of reduction social insurance contributions (pursuant to Clause 3 Article 85 Law on Social Insurance 2014). Only when the company has enough evidence to verify that the employee quits the job without acceptable excuses will the company issue a notice to unilaterally terminate the labor contract. When the company unilaterally terminate contracts with the employee, they must inform in advance according to the provisions of Article 36 Labor Code 2019 and Article 7 Decree No. 145/2020/ND-CP
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