Question 15: Do the “days” and “working days” in a prior notice for termination of LCs include weekly days off and holidays?

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The cases where prior notices are required for termination of LCs

Pursuant to the Labor Code, it is not always required to abide by the regulation on giving prior notice in the “working day” if Employers or Employees wish to terminate LCs unilaterally. It depends on the type of LC and the reason of termination (allowed by labour law) to determine whether prior notice must be given indicated in a working day or simply a calendar day. Specifically as follows:

  1. For the case where Employers wish to terminate LCs unilaterally

If LCs have definite terms and the Employer’s reason for unilateral termination falls into one of the following circumstances: (i) Employees have not consistently fulfilled their duties as prescribed in their LCs; (ii) As a result of natural disasters, fires or other reasons of force majeure as prescribed by law, and Employers are forced to downscale production and cut jobs despite the fact they have taken all remedies; (iii) Employees do not show up at the workplace after the suspension period of LCs expires as prescribed in Article 33 of the Labor Code, Employers must give a prior notice of at least 30 days[1].

If LCs have definite terms and the Employer’s reason for unilateral termination falls into one of the following circumstances: (i) Employees have not consistently fulfilled their duties as prescribed in their LCs; (ii) As a result of natural disasters, fires or other reasons of force majeure as prescribed by law, and Employers are forced to downscale production and cut jobs despite the fact they have taken all remedies; (iii) Employees do not show up at the workplace after the suspension period of LCs expires as prescribed in Article 33 of the Labor Code, Employers must give a prior notice of at least 45 days[2].

If the reason of termination is that Employees are sick or have accidents and have been treated for consecutive 12 months with respect to indefinite LCs, for 6 consecutive months with respect to definite LCs, and for over half the contract term with respect to seasonal or specific-task LCs with terms less than 12 months but their working capacities are not recovered, Employers must give a prior notice of at least 3 working days[3].

In case of seasonal or specific-task LCs with terms less than 12 months, and if the reason of termination falls into one of the cases prescribed in Article 38 of the Labor Code, Employers must give a prior notice of at least 3 working days[4].

  • For the case where Employers wish to terminate LCs unilaterally

If Employees work under definite-term LCs, seasonal LCs or specific-task LCs of less than 12 months, and the reason of unilateral termination falls into one of the following cases: (i) Employees are not assigned to the right jobs or working locations, or the working conditions are not ensured as agreed in LCs; (ii) Employees are not paid in full or in time as agreed in LCs; (iii) Employees are maltreated, sexually harassed or are subject to forced labour; (iv) Employees are sick or have accidents and have been treated for consecutive 90 days with respect to definite LCs, and for one fourth the contract term with respect to seasonal or specific-task LCs with terms less than 12 months but their working capacities are not recovered, Employees must give a prior notice of at least 3 working days[5].

If the Employee’s reason of unilateral termination falls into one of the following cases: (i) Employees are unable to continue executing LCs due to real personal or family difficulties; (ii) Employees are elected to a full-time duty in a public office or appointed to a position in a State body, in these cases Employees must give a prior notice of at least 3 working days with respect to seasonal LCs or specific-task LCs of less than 12 months, or at least 30 days with respect to definite-term LCs[6].

If Employees work under definite-term LCs, seasonal LCs or specific-task LCs of less than 12 months, and the reason of termination is that pregnant Employees must cease working by advice of a competent medical facility, the notification period will depend on the time advised by the competent medical facility[7].

If Employees work under indefinite-term LCs, they must give Employers prior notices of at least 45 days without giving any reason of termination.

Therefore, the period of prior notification which Employees or Employers must follow will be determined to be in a working day or day depending on particular cases as analysed above.

  • Does the period of prior notification in “working day” include weekly days off, annual leave days, holidays, lunar new year holidays, personal leave, and unpaid leave?

Currently, there are no relevant regulations which detail the interpretation of “day” and “working day” to give prior notices for termination of LCs. However, from the perspective of labour law, it can be inferred that working days are the days when Employees must work pursuant to the registered ILRs of the enterprise. Since weekly days off, annual leave days, holidays, lunar new year holidays, personal leave, and unpaid leave are not the days when Employees must work, they will not be considered as working days to be counted into the period of prior notification. Accordingly, if it is referred to as “day” in the Labor Code, this period of prior notification will include weekly days off, annual leave days, holidays, lunar new year holidays, personal leave, and unpaid leave. If it is referred to as “working day” in the Labor Code, this period of prior notification will not include weekly days off, annual leave days, holidays, lunar new year holidays, personal leave, and unpaid leave.

[1]Articles 38.1 (a), 38.1 (c); 38.1(d) and 38.2 (a) Labor Code

[2]Articles 38.1 (a), 38.1 (c); 38.1(d) and 38.2 (b) Labor Code

[3]Articles 38.1 (b) and 38.2 (c) Labor Code

[4]Article 38.2 (c) Labor Code

[5]Articles 37.1 (a), 37.1 (b), 37.1 (c); 37.1 (g) and 37.2 (a) Labor Code

[6]Articles 37.1 (d), Điều 37.1 (đ) and 37.2 (b) Labor Code

[7]Articles 37.1 (e), 37.2 (c) and 156 Labor Code