Is an employee who abandons their job without a valid reason for 05 consecutive working days or more considered to have unlawfully unilaterally terminated the labor contract?

According to the provisions of the 2019 Labor Code, the employee has the right to unilaterally terminate their labor contract with the employer, provided that they comply with the notice period prescribed in Clause 1, Article 35 of the 2019 Labor Code, except in cases where no notice is required. However, if the employee has notified the employer of their intention to terminate the labor contract in accordance with the notice period, but during the period from the date of notification to the effective date of termination, the employee abandons their job without a valid reason for five consecutive working days or more, would this be considered an unlawful unilateral termination by the employee? 

Under the 2019 Labor Code, both the employer and the employee have the right to unilaterally terminate the labor contract. However, the employer may only exercise this right in the cases specified in Article 36 of the Labor Code, which includes the situation where the employee voluntarily abandons their job without a valid reason for five consecutive working days or more.⁽²⁾

Meanwhile, employees may unilaterally terminate the labor contract without providing a reason, provided they comply with the applicable notice period, except in the cases specified in Clause 2, Article 35 of the 2019 Labor Code where no prior notice is required.  

In practice, there are cases where employees exercise their right to unilaterally terminate the labor contract and provide proper notice under Clause 1, Article 35 of the 2019 Labor Code. However, during the notice period, they voluntarily abandon their job without a valid reason for five consecutive working days or more. In such circumstances, is the employee considered to have unlawfully unilaterally terminated the labor contract?  

The 2019 Labor Code and its implementing documents do not provide specific regulations or detailed guidance for this situation, and its interpretation depends on the application of the law in practice. Accordingly, two possible perspectives may arise:  

Viewpoint 1: The employee has not unlawfully unilaterally terminated the labor contract. In this case, the employer has the right to unilaterally terminate the labor contract with the employee under Article 36 of the 2019 Labor Code. 

Viewpoint 2: The employee is considered to have unilaterally terminated the labor contract with the employer by voluntarily abandoning the job without a legitimate reason for five consecutive working days or more. 

In response to the above question, on July 20, 2022, the Legal Department under the Ministry of Labor, War Invalids and Social Affairs (now the Ministry of Home Affairs) issued Notice No. 308/CV-PC to its affiliated units, providing conclusions and guidance on how to address the above-mentioned case for local authorities, enterprises, organizations, and individuals. Accordingly, to determine whether an employee has unilaterally terminated the labor contract, the employer must prove the employee’s subjective intent to terminate the contract and their unwillingness to return to work. If the employer can demonstrate that the employee no longer wishes to work and has voluntarily abandoned the job without a valid reason for five consecutive working days or more (including during the notice period between the date of notification and the effective termination date), then such conduct shall be deemed an unlawful unilateral termination of the labor contract by the employee. In other cases, there is no sufficient basis to conclude that the employee has unilaterally terminated the labor contract unlawfully. Instead, the employer may, in such cases, unilaterally terminate the labor contract in accordance with Point e, Clause 1, Article 36 of the 2019 Labor Code, or may discipline the employee by dismissal under Clause 4, Article 125 of the same Code. 

Based on the above guidance, whether an employee is considered to have unilaterally terminated the labor contract by voluntarily abandoning their job without a legitimate reason for five consecutive working days or more depends on the specific circumstances. Only when the employer can prove the employee’s subjective intent to terminate the labor contract and their unwillingness to return to work can such an act be considered an unlawful unilateral termination. 

However, this guidance from the Legal Department under the Ministry of Labor, War Invalids and Social Affairs (now the Ministry of Home Affairs) has not been officially codified in any legal normative document and thus should only be used as a practical reference. Therefore, in the event of a dispute relating to this issue, the resolution will depend on the facts of the individual case, and the competent labor dispute resolution authority will determine the appropriate legal approach. 

^{(2) Point e, Clause 1, Article 36 of the 2019 Labor Code.}

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