Is the employee’s resignation agreement or unilateral termination of the labor contract?

Currently, it is quite common for employees to proactively propose to terminate their labor contracts. Therefore, both employees and employers need to clearly understand the legal regulations on this issue to ensure their rights and limit disputes.  

1. Determining whether the resignation is the agreement or unilateral termination of the labor contract 

First of all, the employee can propose orally or in writing in the form of a resignation letter. In reality, resignation in writing is often preferred to limit future disputes. Therefore, within the scope of this article, the author will focus on analyzing the case where the employee submits a resignation letter or other equivalent documents to terminate the labor contract. 

The content of the resignation letter is a factor in determining whether the employee desires to agree or unilaterally terminate the labor contract. As follows:  

Firstly, in the case of the agreement to terminate the labor contract 

In this case, the content of the resignation letter will indicate the employee’s desire for resignation. Termination of the labor contract will depend on the approval of the employer and will be carried out as follows: 

• In case the employer approves: The labor contract will terminate according to the time proposed in the resignation letter or according to the agreement between the two parties. 

• In case the employer does not approve: the labor contract will continue to be implemented.  

Secondly, in the case of unilateral termination of the labor contract 

In this case, the content of the resignation letter will notify the time for resignation. Termination of the labor contract is implemented without the employer’s approval. It should be noted that unilateral termination of a labor contract is only considered legal when the employee notifies the company in advance as prescribed in Article 35.1 of the Labor Code 2019 as follows:  

• For the indefinite-term labor contract: The employee will notify at least 45 days in advance; 

• For the labor contract with a term of between 12 months and 36 months: The employee will notify at least 30 days in advance; 

• For the labor contract with a term of under 12 months: The employee will notify at least 03 days in advance. 

However, in some cases, the employee may unilaterally terminate his/her labor contract without the prior notice and the company must approve. In other words, when the employee submits the resignation letter in the following cases, the company cannot refuse and must provide benefits to the employee under the law: 

• Being not assigned the job or workplace or being not assured of the working conditions as agreed upon, except the case of assignment of employees to perform jobs other than those stated in the labor contract; 

• Being not paid in full or on time, except the case of force majeure under Article 97.4 of the Labor Code 2019; 

• Being ill-treated or beaten or verbally or physically humiliated by the employer, which affects his/her health, dignity or honor; or being subject to forced labor;

• Being sexually harassed at the workplace; 

• The pregnant employee is certified by a competent health establishment that her continued work will adversely affect her pregnancy; 

• Reaching the retirement age as prescribed in Article 169 of Labor Code 2019, unless otherwise agreed upon by the two parties; 

• The employer provides untruthful information as prescribed in Clause 1, Article 16 of Labor Code 2019, affecting the performance of the contract.  

2. Responsibilities of the employer in case of termination of the labor contract  

Whether it is a case of agreement or unilateral termination of the labor contract, under Article 45.1 of the Labor Code 2019, the employer must notify the employee in writing of the termination of the labor contract. If not implemented, the employer (the organization) may be fined from VND 2,000,000 to VND 6,000,000 (under Article 12.1 and Article 6.1 of Decree No. 12/2022/ND-CP).  

In addition, under Article 48 and Article 113.3 of the Labor Code 2019, within a period of 14 to 30 days from the date of termination of the labor contract, the employer has the following responsibilities:  

• Payment of salaries (including salaries for untaken leave days), severance allowance.

Regarding severance allowance, the employer is only responsible for paying this amount when the employee meets the following conditions (under Article 46.1 of the Labor Code 2019): 

• • The employee who has worked regularly for a full 12 months or longer; 

• • The employee has not been eligible to enjoy a pension under the law; 

• • The employee has given up work at his/her own discretion without a plausible reason for 5 or more consecutive days. 

• Completing the procedures for certification of the period of payment of social insurance and unemployment insurance premiums and returning to the employees the certification together with the originals of other papers of the employees. 

• Providing copies of documents concerning the working process of the employees if the employee requests (Expenses for photocopying and sending documents are paid by the employer). 

In case the employer (the organization) does not carry out the above responsibilities, it may be fined from VND 2,000,000 to VND 40,000,000 for each activity, depending on the number of violated employees (under Article 12.2 and Article 6.1 Decree 12/2022/ND-CP). 

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