The term of notifying the unilateral termination is regarded as an outstanding point when it comes to the institution of unilateral termination of the labor contract. The current Vietnamese labor law has already stipulated this term for the parties in the labor relationship. However, an employment contract means contract established based on the freedom of agreement between the parties, as long as such agreement does not violate the provisions of law. The question is whether the parties can negotiate on the term of unilaterally terminating the labor contract as mentioned above or not?
According to current regulations on the term for unilaterally terminating labor contract [1]
Both employers and employees need to notify to each other in advance when they unilaterally terminate the labor contract as follows:
- at least 45 days in case of an indefinite-term labor contract;
- at least 30 days in case of a 12 – 36 months fixed term labor contract;
- at least 03 working days in case of a labor contract with a term of less than 12 months; or
- the notice period in certain fields and jobs shall be specified by the government [2]:
- at least 120 days in case of an indefinite-term labor contract or a definite term labor contract of 12 months or more; or
- at least equal to one-quarter of the term of labor contract for labor contracts with a term of less than 12 months.
Herein, the law only limits the minimum amount of time that parties are obliged to notify each other, which means that there is no provision prohibitingthe agreement of parties on this term. Therefore, the parties can negotiate on the term for unilateral termination of the labor contract as long as it complies with the law. For example, in case of an indefinite term contract, the parties can deal on this term as long as it is 45 days or more.
The question is whether the parties can negotiate on the term for unilateral termination which is less than the minimum amount of time prescribed by law? For instance, can the parties agree on an under 45-day term in case of an indefinite term contract?
In the opinion of the author, the parties cannot negotiate on the term for unilateral termination of labor contract which is less than the minimum amount of time prescribed by law. Because the purpose of promulgating those regulations is to limit the unilateral termination labor contract right of both employees and employers in the current Labor Code, which protect benefits for the parties as follows: For employers, it will limit the possibility of employee’s job-hopping since they no longer want to stay with the employer in the long run. The number of employees will decrease in this case. At the same time, because of the business nature of enterprises, the recruitment department cannot find the right candidate in a short period of time to replace the employee who unilaterally terminates the labor contract. That can adversely affect the quality and productivity of the enterprises’ operations.
For employees, when the employer has the right to unilaterally terminate a labor contract, the longer term creates favorable conditions for the employee to look for a new job. In addition, the employee will have more time to research and resolve legal issues when the employer unilaterally terminates the labor contract illegally. If the term is profitless for employees, they can negotiate again with the employer about this amount of time before signing and of course, this term must comply with the provisions of law.
So, in case that the employer and the employee agree on the term for unilateral termination of the labor contract under the minimum level prescribed by law and when the contract is terminated, can the employee or the employer take this violation as a basis for claiming compensation or initiating a lawsuit?
In the author’s point of view, take an indefinite term labor contract for example, the term for unilateral termination is at least 45 days in accordance with the law, but the parties agree to perform this obligation in 30 days.
First, at any time, when it is time to notify as agreed (30 days before the end of the contract) or under 30 days, if the parties agree and sign with each other on the termination of labor contract, this will be transition to a contract termination agreement. Of course, it is not reasonable to use this as an excuse to claim for compensation or initiate a lawsuit.
Second, until the time to notify as agreed, the parties’ notifying or not does not affect to each party’s right to claim compensation or initiate a lawsuit when the contract terminates. As the author has noted above, the parties cannot negotiate on term for unilateral termination labor contract less than the minimum amount of time prescribed by law. If it happens, this part of labor contract will violate the law and the contract may be deemed void. The parties must still comply with the provisions on the term for unilateral termination labor contract in Labor Code 2019.
Labor contract is an agreement between the parties, but it must abide by law, not violate the prohibition of law and social ethics. So, the parties should comply with the law to protect themselves when they agree on the term for unilateral termination labor contract.
The current law has specified the term for unilateral termination labor contract. However, those who have no expertise in this field will face the challenge of understanding and properly applying the law in real – life cases. To avoid confusion and ensure your rights absolutely, please carefully check the law and consult trusted counsels.
[1] Clause 2 of Article 35 and Clause 2 of Article 36 of Labor Code 2019
[2] Article 7 of Decree 145/2020/ND-CP elaborate some articles of the labor code on working conditions and labor relations