Answer:
- May the Employer set out a longer prior notice period upon the Employee’ termination of LC than the one prescribed by law?
According to general stipulations on the prior notice period upon termination of the LC, the Employee must comply with the prior notice period of at least 3 working days for the LC with a term of fewer than 12 months, 30 days for a definite-term LC with a term from 12 months to 36 months and 45 days for an indefinite-term LC [1]. This is the obligation for the Employee to ensure that the Employer will have time to find a new Employee. As a matter of law, this is also the Employee’s 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 the Employer depends on this right of the Employee for unilaterally turning it into a requirement for the Employee to give any advance notice of a longer period than prescribed by the law, this requirement will not be in accordance with the law.
2. How does the Employer extend the prior notice period upon the Employee’ termination of LC?
Where the Employer wants the Employee to give an advance notice upon termination of his or her LC for a longer period than stated by the labour law, the Employer may consider written agreements with the Employee to obtain his or her consent to this matter as long as the Employer makes sure not to damage the Employee’s material benefits. However, even if the Employee agrees to the Employer’s requirement, such a requirement is likely to directly affect the Employee’ rights and interest.
For example: An Employer and an Employee sign a definite-term LC from 01 January 2017 to 31 December 2018. In early March 2018, the Employee’s son was seriously ill and had to be treated at the hospital and home for a long period of time, so the Employee wanted to quit the job to take care of his or her son. According to Article 37.1 of the Labour 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 or she cannot know when the son becomes 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 Labour Code. In cases where the parties agree to a prior notice period of two months upon the 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 a 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 Labour Code in a LC is not considered an agreement to terminate a LC under Article 34.3 of the Labour 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 the Employee and this consent will result in the written agreement on terminating the LC.
For example: On 01 January 2018, the two parties signed a LC with a term of 12 months from 01 January 2018 to 31 December 2018. On 02 April 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 April 2018; and
- The last working day of the Employee 03 months as of the date of signing the Agreement – i.e. the last working day of the Employee is 30 June 2018.
In fact, there are no legal precedents or 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, the Employer should consider seeking official guidelines on its legal application from the competent local labour management State agency and must ensure such agreement is to be based on the protection of the Employee’s employment benefits.
[1] Article 35.1 of the Labour Code
[2]Article 43.2 of the Labour Code
