The labor relationship between the employers and the employees is considered a “sensitive” relationship, which is governed directly by the Labor Code and relevant labor regulations. To balance this relationship, besides strict rules to protect the rights of the employee, who is considered “the weaker party” in the labor relationship, the law on labor also gives the employer certain rights to protect their legitimate rights and benefits, in which, the right to unilaterally terminate the labor contract with the employee is one of the major rights. In this article, we will mention, analyze, and clarify legal issues regarding one of the cases in which the employer is entitled to terminate the labor contract with the employee – terminate the labor contract because the employees frequently do not complete the works.
In principle, the unilateral termination of the labor contract of the employer is stemmed from their subjective intent without tied by the employee’s consent. However, this action of the employer must entirely meet two conditions fully under the law, particularly:
Firstly, the employer is only allowed to terminates the labor contract unilaterally if there is at least 01 basis (reason) prescribed in article 36 of the Labor Code 2019 (“the Labor Code”).
Secondly, the unilateral termination of the labor contract of the employer must comply with conditions about forms, procedures. And the minimum requirement is the obligation to give the termination notice in advance. Depending on the type of labor contract, whether it is a fixed-term or an indefinite-term labor contract, or the type of work whether it is normal or special, the deadline to give termination notice in advance to the employee is different, specifically:
- For the employee doing work which is out of the list of particular occupations: at least 45 days to the indefinite-term labor contract, at least 30 days to the labor contract with a fixed-term from 12 to 36 months, at least 03 days to the labor contract with a fixed-term under 12 months.
- For the employee doing work subject to the list of particular occupations prescribed in regulations of the law (crew members, aircraft technicians, business’s managers, crewmembers (in specific cases): at least 120 days to the indefinite-term labor contract or with the fixed-term of 12 months or more, at least equal to one-fourth the labor contract’s duration whose term is under 12 months.
- In some cases, the employer does not have to send the termination notice in advance if the employee is not duly present at the workplace after the postponement period of the labor contract expires or the employee voluntarily quit the job without any legitimate reasons from 05 consecutive working days or more.
However, we do not encourage the employer to unilaterally terminate the labor contract “silently” with the employee. Since, if the employer cannot prove the employee’s violations, the employer is deemed to unilaterally terminate the labor contract illegally and shall be responsible for the legal consequences as mentioned below.
In case that the employer violates any conditions, the unilateral termination of the labor contract of the employer is considered the illegal termination, and the employer must bear inevitable legal consequences, including the responsibility to reinstate the employee back to work, compensate wage for the days in which the employee is not allowed to work, compensate for damage, and other responsibilities.
According to the Labor Code’s regulations: “The employer has the right to unilaterally terminate the labor contract in the case that the employee fails to perform the work frequently according to the regulation for assessment of employees’ fulfillment of duties of the employer. The regulation for evaluating of employees’ fulfillment of duties is issued by the employer but it must consult the opinion of the representative organization of employees”. Under the above regulation, the case that the employee frequently does not complete the work can be considered as one of the lawful bases for the employer to unilaterally terminate the labor contract. However, there are two issues that need considering when applying these regulations, specifically:
Firstly, how to definite the frequency when the employee fails to perform the work to serve as the basis to unilaterally terminate the labor contract.
Determining if the employee frequently fails to complete the work to serve as the basis for the unilateral termination of the labor contract must rely on particular evaluation criteria which are stated in a written document. This document may be established under the form of internal regulation, which can be called the evaluation of employees’ fulfillment of duties. Compared with the Labor Code 2012, the statutory regulation about the regulation for evaluation of employees’ fulfillment is clearer, more directional, mandatory and easier to apply for the employer instead of the prior regulation “The employee often fails to perform the work stated in the labor contract”.
Besides, the frequency factor of failing to perform the work is also an important factor that needs to be considered. In common, with big companies – corporations, the action is deemed frequent when repeated 03 times or more. However, the definition “frequency” is an unspecific definition and easily causes dispute in practice. Therefore, to have a clear basis for evaluating employees’ fulfillment of duties and to have the right to unilaterally terminate the labor contract because the employee frequently fails to complete the work, the employer must establish the regulation for assessment of employees’ fulfillment of duties with specific, clear, separate and proper standards to each position of the employee.
Second, the regulation for the evaluation of employees’ fulfillment of duties must be published legally.
Currently, sequences and procedures for issuance of the regulation for evaluation of employees’ fulfillment of duties are prescribed sporadically in many different clauses instead of being stated in a specific provision. However, in general, a statement of the regulation for evaluating employees’ fulfillment of duties is valid when it meets specific conditions as follows:
- The regulation for evaluating employees’ fulfillment of duties must be made in writing.
- After having the draft of the regulation for evaluating employees’ fulfillment of duties, the employer must hold the dialogue, get opinions from the employees or the employees’ representative or the internal employee representative organization. In which, the representative organization of employees includes the primary labor union or the direct labor union at a higher level or the representative organization of employees at the enterprise.
- After talking and getting opinions successfully, the complete regulation for evaluating employees’ fulfillment of duties must be issued by the employer and publicly announced, applied uniformly at the workplace.
Only accommodating these elements and conforming to the deadline to give notice in advance as mentioned in the first portion, the employer’s unilateral termination of the labor contract with the employee is valid.
According to relevant regulations and labor disputes in practice, we list out below the cases that the unilateral termination of the labor contract with the employee may be considered as illegal unilateral termination, as follows:
- The regulation for evaluation employees’ fulfillment of duties issued by the employer does not adhere to the order, the procedure;
- The regulation for assessment employees’ fulfillment of duties is general, unspecific, the action is not suitable for each position so the basis to evaluate the employee is not precise;
- The employer does not announce the regulation publicly for assessment employees’ fulfillment of duties after lawfully registering, which leads to the employee’s violation but it cannot be based on the regulation to handle. When the employer is in these above cases, the unilateral termination of the labor contract with the employee will be unlawful and the employer must take responsibility for strong legal consequences.
In summary, in case unilaterally terminate the labor contract for the reason that the employee frequently fails to perform the work, the employers can easily meet the condition about the duration of sending notices in advance but they can face many difficulties in proving the legal basis of the termination. The regulation for assessing employees’ fulfillment of duties is still a new definition, unpopular and has not been applied widely. As a result, the employer will face many difficulties in constructing, drafting as well as registering the document at competent agencies and applying it in practice. Therefore, the employer should have a plan, specific orientation, refer to regulations of the law, consult attorneys, state agencies before issuing the regulation for assessment of employees’ fulfillment of duties. Besides, before taking action concerning unilateral termination of the labor contract, the employer must consider the legal conditions at getting the previous conditions prior to promulgating any regulations.
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.
