Currently, I am an employee working at Company X under a fixed-term labor contract with a duration of 02 years. However, yesterday, the Company suddenly notified me of the termination of my employment contract without providing any specific reason and without giving prior notice as required by law. This has caused me great confusion and concern regarding my rights. In the case where an employer unlawfully and unilaterally terminates an employment contract as described above, what steps should I take to protect my lawful rights and interests? I respectfully request the Company to provide guidance!
Answer
Pursuant to Clause 1 Article 36 of the 2019 Labor Code, an employer has the right to unilaterally terminate a labor contract in the following cases:
- The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer.
- The employee is sick or has an accident and remains unable to work after having received treatment for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months.
- In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;
- The employee fails to return to work after 15 days from the end of the suspension period of the labor contract.
- The employee reaches the statutory retirement age;
- The employee voluntarily leaves work without a legitimate reason for 05 consecutive working days or more;
- The employee provides dishonest information under Clause 2 Article 16 of the Labor Code at the time of entering into the labor contract, affecting the recruitment decision.
Therefore, if the employer unilaterally terminates the labor contract but the case does not fall under any of the grounds listed above, such termination is deemed unlawful.
In addition, the employer has also violated the notice period requirement under Point b Clause 2 Article 36 of the 2019 Labor Code, which states: “When unilaterally terminating a labor contract, the employer must give prior notice to the employee at least 30 days for a fixed-term labor contract with a duration of 12 to 36 months”
Thus, since the Company terminated your labor contract without any lawful grounds and failed to comply with the statutory notice period, the Company has unlawfully and unilaterally terminated the labor contract. This act directly infringes upon the lawful rights and interests of the employee under the 2019 Labor Code.
When an employee is unlawfully terminated, the employee may seek to protect his/her legitimate rights through the following methods:
Method 1: Filing a Complaint:
- The employee submits a first-time complaint to the Company. If the Company does not resolve it or resolves it unsatisfactorily, the employee may submit a second-time complaint.
- The second-time complaint is submitted to the Chief Inspector of the Department of Labor, War Invalids and Social Affairs where the Company is headquartered.
Complaints may be submitted in writing or made directly.
Legal basis: Articles 5 and 6 of Decree 24/2018/NĐ-CP
Method 2: Mediation
Request mediation by a labor mediator or the Labor Arbitration Council.
Note: The statute of limitations for requesting a labor mediator to resolve an individual labor dispute is 06 months from the date the party discovers the act that is claimed to violate their lawful rights and interests.
The statute of limitations for requesting the Labor Arbitration Council to resolve an individual labor dispute is 09 months from the same dat.
Legal basis: Clause 1 Article 191 and Article 190 of the 2019 Labor Code
Method 3: Filing a Lawsuit at Court.
Instead of filing a complaint or requesting mediation, an employee who is unlawfully and unilaterally terminated may directly initiate a lawsuit at the Court following civil procedure law without being required to undergo mediation.
Legal basis: Article 188 of the 2019 Labor Code
Accordingly, depending on your objectives, circumstances, and preferences, you may choose one of the above measures to protect your infringed rights and interests, ensuring the dispute is resolved lawfully and in a timely manner.
Employer’s obligations when unilaterally terminating the labor contract:
- The employer that illegally unilaterally terminates an employment contract with an employee shall reinstate the employee in accordance with the original employment contract, and pay the salary, social insurance, health insurance and unemployment insurance premiums for the period during which the employee was not allowed to work, plus at least 02 months’ salary specified in the employment contract.
After the reinstatement, the employee must return the severance allowance or redundancy allowance (if any) to the employer.
Where there is no longer a vacancy for the position or work as agreed in the employment contract and the employee still wishes to work, the employer shall negotiate revisions to the employment contract.
Where the employer fails to comply with the provisions on notice period in Clause 2 Article 36 of this Labor Code, the employer shall pay a compensation that is worth the employee’s salary for the remaining notice period from the termination date.
- In case the employee does not wish to return to work, in addition to the compensation prescribed in Clause 1 of this Article, the employer shall pay a severance allowance in accordance with Article 46 of this Code in order to terminate the employment contract.
- Where the employer does not wish to reinstate the employee and the employee agrees, in addition to the compensation mentioned in Clause 1 of this Article and the severance allowance mentioned in Article 46 of this Labor Code, both parties shall negotiate an additional compensation which shall be at least 2 months’ salary under the employment contract in order to terminate the employment contract.
Legal basis: Article 41 Labor Code 2019
Consultation: Labor Law Services
