Answer:
1. Cases requiring a notice period upon LC termination
Under the Labour Code, not in all cases of LC unilateral terminating, the Employer, or the Employee must comply with the notice period “according to working days”. Accordingly, depending on the type of LC and the reason for terminating defined by the Labour Code, the notice period will be calculated according to working days or calendar days. As follows:
1.1 If the Employer unilaterally terminates the LC
If the LC term entered into is fixed and the reason for unilateral termination of the LC given by the Employer falls into one of the following cases: (i) The Employee regularly fails to complete the work under the LC; (ii) Due to natural disasters, fires, dangerous epidemics, enemy destruction or relocation or reduction of production and business at the request of competent state agencies that the Employer has tried to recover but still have to reduce production, reduce workplaces; (iii) The Employee is at full retirement age as prescribed; (iv) The Employee provides untruthful information according to Article 16.2 of the Labour Code when entering into the LC affecting the recruitment of the Employee, the period that the Employer must notify the Employee is at least 30 days in advance for a LC with a fixed-term from 12 months to 36 months or at least 03 working days in advance for a LC with a term of fewer than 12 months[1].
If the type of LC entered into is an indefinite-term LC and the reason for unilateral termination of the LC provided by the Employer is one of the same cases as the definite-term LC mentioned above, the period for giving notice in advance by the Employer to the Employee is at least 45 days[2].
If the reason for terminating the LC is because the Employee working under an indefinite-term LC is sick or had an accident and has been treated for 12 consecutive months, or the Employee working under a definite-term LC has been treated for 06 consecutive months, or the Employee working under a seasonal LC or a certain job with a term of fewer than 12 months has been treated for over half of the term of the LC but his or her working capacity has not yet recovered, the term that the Employer must notify at least 03 working days in advance to the the Employee[3].
If the reason for unilaterally terminating the LC given by the Employer falls into one of the following cases: (i) the Employee is not present at the workplace after the period specified in Article 31 of the Labour Code; (ii) The Employee voluntarily quit his or her job without having a plausible reason for 05 or more consecutive working days, the Employer is not required to notify the Employee in advance[4].
1.2 If the Employee unilaterally terminates the LC
If the Employee works under a LC with a term of fewer than 12 months, the period that the Employee must notify the Employer in advance is at least 03 working days[5].
If the Employee works under a LC with a term from 12 months to less than 36 months, the period that the Employee must notify the Employer is at least 30 days[6].
If the Employee works under the indefinite-term LC, the period for notice to the Employer is at least 45 days in advance[7].
1.3 If an Employee works in some of the following specific job or occupation[8]:
- Aircrew members; aircraft maintenance technicians, aviation repairmen; flight coordinators;
- Enterprise manager under the Law on Enterprises; Law on management and use of state capital to invest in production and business in the enterprise;
- Crew members working on Vietnamese vessels which are functioning overseas; crew members dispatched to foreign vessels by Vietnamese dispatching agencies; and
- Other cases as prescribed by laws.
The notice period is set for both the Employer and the Employee as follows:
- At least 120 days for indefinite-term LC or fixed-term LC of 12 months or more; and
- At least equal to a quarter of the term of the LC if its term is less than 12 months.
Thus, the notice period that the Employer or the Employee must notify the other party will be calculated according to working days or calendar days depending on each specific case as analysed above.
2. Does the “working day” in the notice period include weekends; annual leave; public holidays; personal leave; unpaid days off?
The Labour Code has no regulation that specifically interprets the meaning of “day” and “working day” as required for calculating the notice period before terminating the LC. However, from the perspective of labour law, it can be understood that the working day is the day that the Employee must go to work according to the registered ILR of each enterprise. And so, weekends, annual leave, public holidays, personal leave, unpaid leave on which the Employee is not required to go to work are not considered as the working day of Employee to be included in the notice period upon the working day. Accordingly, if the Labour Code refers to “day”, the advance notice period will include weekends, annual leave, public holidays, personal leave, unpaid leave. If the Labour Code refers to “working day”, the notice period will not include weekends, annual leave, public holidays, personal leave, unpaid leave.
[1] Articles 36.1 (a), 36.1 (c), 36.1 (dd), 26.2 (b), and 36.2 (c) of the Labour Code
[2] Article 35.1 (c) of the Labour Code
[3] Articles 36.1 (b) and 36.2 (c) of the Labour Code
[4] Articles 36.1 (d) and 36.1 (e) of the Labour Code
[5] Article 35.1 (c) of the Labour Code
[6] Article 35.1 (d) of the Labour Code
[7] Article 35.1 (a) of the Labour Code
[8] Article 7 of Decree 145/2020/ND-CP of the Government dated 14 December 2020
