Answer:
The Employee’ arbitrary leave without any reasons for a period of consecutive working days will lead to two legal consequences as follows:
- In case the Employee is dealt with labour discipline when arbitrarily leaving the job for a period of many consecutive working days without any reason
According to the regulations of the Labour Code[1], when an Employee takes arbitrary leave of 05 accumulated working days within a maximum period of 30 days or 20 accumulated working days within a maximum period of 365 days from the first day of arbitrary leave without any justifiable reason, the Employer will have the right to apply discipline in the form the dismissal to the Employee. The justifiable reason considered as justifiable in this case include[2]: (i) natural disaster, fires and the Employee has sought all remedial measures but been unable to present to work; (ii) illness of the Employee, biological parents, adoptive parents, parents-in-law, spouse, biological children or legally adopted children as certified by the medical consulting or treating establishments established and operating in accordance with law; or (iii) other cases specified in ILR of the enterprise. Accordingly, if being absent from work for consecutive days (but no more than 5 days) and enough the number of accumulated days under the aforesaid rule the Employee can be dealt with labour discipline as mentioned above.
When applying any form of labour discipline to the Employees, especially for the most serious form of dismissal, the Employer must strictly follow the sequence for dealing with labour discipline prescribed by the Labour Code. Accordingly, before conducting a meeting of dealing with labour discipline, the Employer must notify the content, time, location of the meeting, full name of the Employee, act of breach dealt with labour discipline to the Employee and the organisation representing the Employees at the grassroots level where Employee isa member, ensure these parties’ receipt of the notice before the meeting occurs. A meeting to deal with the labour discipline will be conducted when all notified parties participate. The Employee and the organisation representing the Employees at the grassroots level are obliged to confirm attendance at the meeting. If one of the above parties are unable to attend by the notified time or place, the Employee and the Employer will agree to change the meeting time and location; if the parties cannot reach an agreement in this regard, the Employer shall have the right to decide on the time and location of the labour discipline meeting[3].
2. In case the Employer is entitled to unilaterally terminate the LC when the Employee arbitrarily leaves the job for many consecutive days
According to regulations of the Labour Code, the Employer also have the right to unilaterally terminate the LC if the Employee arbitrarily leaves his or her jobs without a justifiable reason for 05 or more consecutive working days as prescribed in Article 125.4 of the Labour Code[4]. In this case, the Employer is not required to notify the Employee in advance of the LC termination because it is unnecessary[5] but must issue a notice on LC termination in writing[6]. In fact, if the Employee arbitrarily leaves the job for many days, the Employer will be normally unable to contact the Employee (by phone, the original residential address that the Employee registered with the Employer when being recruited). Even then the Employee may not return the enterprise to continue working or perform the procedures to terminate the LC. Therefore, sending a written notice on the LC termination when the Employee arbitrarily leaves the job for many consecutive days, namely from 05 working days or more without a justifiable reason, is practically not feasible and waste additional time and expenses of the enterprise.
[1] Article 125.4 of the Labour Code
[2] Article 125.4 of the Labour Code
[3] Article 70.2 of Decree 145/2020/ND-CP of the Government dated 14 December 2020
[4] Article 36.1(e) of the Labour Code.
[5] Article 36.3 of the Labour Code.
[6] Article 45.1 of the Labour Code.
