May Employers set
out a longer prior notice period upon Employees’ termination of LCs than the
one prescribed by law?
Pursuant to the general stipulations on the prior notice period upon
termination of LCs, Employees must comply with the prior notice period of at
least 3 working days for the seasonal or specific job-based LC with a term of
less than 12 months, 30 days for the definite LC and 45 days for the indefinite
LC
[1]. This is the obligation for Employees to ensure that
Employers will have time to find new Employees. As a matter of law, this is
also the Employees’ right to choose to make this notice for a longer period (2
months, 3 months or even more in advance) as long as they comply with the
minimum prior notice period of 03, 30 or 45 working days, as the case may be,
in accordance with the law. Thus, if Employers depend on this right of
Employees for unilaterally turning it into a requirement for Employees to give
any advance notice of a longer period than prescribed by the law, this
requirement will not be in accordance with the law.
- How do Employers extend the prior notice period
upon Employees’ termination of LCs?
Where Employers want Employees to give an advance notice upon termination of
their LCs for a longer period than stated by the law, Employers may consider
the written agreement with Employees to obtain their consent to this matter as
long as Employers make sure not to damage Employees’ material benefits.
However, even if Employees agrees to the requirement by Employers, such a
requirement is likely to directly affect Employees’ rights and interests.
For example: An Employer and an Employee sign definite LC from 01/01/2017 to
31/12/2018. In early March 2018, the Employee’s son was seriously ill and had
to be treated at the hospital and at home for a long period of time, so the
Employee wanted to quit the job to take care of his/her son. Pursuant to
Article 37.1 of the Labor Code, the Employee is obliged to notify the Employer
at least 30 days in advance. However, if the Employer issues a regulation
requiring the Employee to give notice at least 02 months or more, they will not
be able to meet this requirement because he/she cannot know when they may
become seriously ill. In addition, when the Employee fails to comply with the
prior notice period prescribed by the Employer, the Employer may state that the
Employee has unilaterally terminated the LC in contravention of the law and require
the Employee to compensate the Employer for a sum corresponding to the
Employer’s salary for unannounced days under the Labor Code. In cases where the
parties agree to a prior notice period of two months upon termination of the
LC, the Employee will have to compensate the Employer for two months’ salary
due to a breach of the notice period, while the compensation is only the
Employee’s one-month salary corresponding to 30-day notice upon termination of
the LC in accordance with the labour law
[2]. Then the
application of the said provision by the Employer will directly affect the
Employee’s right to unilaterally terminate the LC in accordance with the law.
This may lead to the risk that the Employee may complain to the Employer in
order to claim benefits in accordance with the law.
It should be noted that the provision on the longer prior notice period than
regulated by the Labor Code in LC is not considered an agreement to terminate
an LC under Article 36.3 of the Labor Code. Because such agreement occurs at a
time when the two parties wish to terminate LC (it is impossible to agree on
the terms and conditions of termination in the LC), this means that the two
parties have agreed to terminate the LC ahead of schedule. Accordingly, at the
time of agreeing to terminate the LC, in addition to other agreements, the two
parties have the right to consent to the last working day of Employees and this
consent will result in the written agreement on terminating the LC.
For example: As of 01/01/2018, the two parties signed an LC with a term of
12 months from 01/01/2018 to 31/12/2018. As of 02/04/2018, the two parties
agreed to terminate the LC ahead of schedule and sign the agreement on
terminating the LC with the related contents as below:
- The date of
signing the agreement on terminating the LC is 02/04/2018; and
- The last
working day of Employees is the date after 3 months from the date of
signing the Agreement – i.e. their last working day is 30/06/2018.
In fact, there are no legal cases related to the agreement on a longer
advance notice period upon termination of the LC than that which is stated by
the law. Acting with prudence, Employers should consider seeking official
guidelines on its legal application from the competent local labour management
authority and must ensure such agreement is to be based on the protection of
Employees’ benefits.
[1] Articles 37.2 (b) and 37.3 Labor Code
[2]Article 43.2 Labor Code
