Completing the Regulations on Termination of Labor Contracts.

When resolving this case, the competent authority for resolving labor disputes shall declare the labor contract invalid, and the rights of the parties shall be resolved in accordance with the provisions of law or collective labor agreements (if any); at the same time, the competent authority for resolving labor disputes shall also declare the labor contract null and void, unless the employer agrees to continue performing the labor contract.

c) Labor contracts violate regulations on the form of labor contracts

According to Article 28 of the Labor Code, Clause 1, Article 3 of Decree No. 44/2003/ND-CP dated May 9, 2003 of the Government, the labor contract must be signed in writing. For some temporary jobs with a term of less than 3 months or for domestic workers, the law allows the parties to enter into an oral contract. The labor contract signed in writing must follow the form prescribed by the Ministry of Labor - Invalids and Social Affairs. According to these regulations, the following cases may be declared invalid.

- The parties enter into an oral contract to perform regular work for a term of 3 months or more;

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- Labor contract documents not following form No. 1 attached to Circular No. 21/2003/TT-BLDTBXH dated September 22, 2003 of the Ministry of Labor, War Invalids and Social Affairs.

When resolving the above violations, the competent authority for resolving labor disputes shall declare the labor contract invalid. Regarding the settlement of employee rights, in this case, in principle, the employee rights shall be settled according to the provisions of law or collective labor agreements (if any), as of the date of dispute settlement. However, for labor contracts that are only in violation of form, but the content of the agreement is not contrary to the law and collective labor agreements, the competent authority for resolving labor disputes may decide on the rights of the parties according to the legal agreements in the labor contract.

d) Labor contracts violate regulations on contract types

The type of labor contract is a provision on the term of the labor contract. According to the provisions of Article 27 of the Labor Code, Article 4 of Decree No. 44/2003/ND-CP dated May 9, 2003 of the Government, there are 3 types of labor contracts: indefinite-term labor contracts, labor contracts with a term of 12 to 36 months, and seasonal labor contracts or labor contracts for a certain job with a term of less than 12 months. Clause 3 of this Article and Clause 3, Article 4 of Decree No. 44/2003/ND-CP dated May 9, 2003 also stipulate that parties are prohibited from entering into seasonal contracts or contracts for a specific job with a term of less than 12 months to perform regular jobs of 12 months or more, except in cases where it is necessary to temporarily replace employees who are on military service, are disciplined and transferred to other jobs for a limited period, employees who temporarily suspend the performance of their labor contracts, take maternity leave or take other temporary leave, or labor contracts signed with retired people.

In addition, Clause 2, Article 27 of the Labor Code and Clause 4, Article 4 of Decree No. 44/2003/ND-CP dated May 9, 2003 also stipulate that when the parties sign a fixed-term contract or a seasonal labor contract, within 30 days from the date of expiration of the labor contract, the two parties must sign a new labor contract. If a new labor contract is not signed, the signed contract becomes an indefinite-term labor contract. If the new labor contract is signed as a fixed-term contract, it can only be signed for an additional term of no more than 36 months; after that, if the employee continues to work, the two parties must sign an indefinite-term labor contract.

Based on the above provisions, cases of labor contracts that violate the type of contract that can be declared invalid include:

-Parties entering into seasonal or specific job labor contracts with a term of less than 12 months to perform regular work for 12 months or more that is not permitted by law.

- The parties enter into a fixed-term labor contract, but the term is over 36 months. This is a fairly common case in practice. Pursuant to Clause 1 of Article 27 of the Labor Code and Clause 2 of Article 4 of Decree 44/2003/ND-CP dated May 9, 2003 of the Government, a fixed-term labor contract is only applicable to jobs with a definite end date within a period of 12 to 36 months. For jobs with an indefinite end date or jobs with a term of over 36 months, the parties must enter into an indefinite-term contract. Thus, when there is a dispute and the signed labor contract has a term of over 36 months, the competent authority to resolve the labor dispute will declare the labor contract invalid.

- When a fixed-term or seasonal labor contract expires and after 30 days from the date of expiration, the employee is still working and the parties have not signed a new labor contract. In reality, when the labor contract expires, the employee is still working, the parties do not sign a labor contract, and after a period of time, the employer terminates the labor contract because the labor contract has expired. In this case, the competent authority to resolve labor disputes only decides that the termination of the labor contract by the employer is illegal, forcing the parties to sign an indefinite-term labor contract. It should be noted that in this case, the Court with the authority to resolve labor disputes shall base on the provisions of Clause 2, Article 27 of the Labor Code to accept the employee's request to initiate a lawsuit regarding the unilateral termination of the labor contract, forcing the employer to accept the employee back to work and the parties proceed to sign an indefinite-term labor contract.

- When a fixed-term or seasonal labor contract expires, the parties sign a new fixed-term labor contract. When this contract expires, the parties sign another fixed-term labor contract. In this case, if a dispute arises, the Court shall declare the labor contract invalid. If the dispute is about the employer terminating the labor contract due to the expiration of the contract, the competent authority shall resolve the dispute.

Labor contract forces the employer to accept the employee back to work and sign an indefinite-term contract (except in cases where the employee requests to sign a fixed-term contract).

d) The labor contract violates the provisions on the content of the labor contract.

The provisions of law on the content of labor contracts can be divided into groups and corresponding to each group are cases where the contract is considered invalid.

-When concluding a labor contract, the parties must agree on the main contents of the contract as stipulated in Clause 1, Article 29 of the Labor Code. If the parties do not agree or do not fully agree on the main contents of the contract as stipulated, the contract is considered invalid.

When raising such a question, there is also an opinion that it is necessary to specifically distinguish the terms that the parties have not agreed upon to determine which terms are considered invalid if missing and which terms are not considered invalid if missing. Through research, it can be seen that such a distinction is not suitable for practice and is also incorrect in theory. Because Clause 1, Article 29 of the Labor Code stipulates that "The labor contract must have the following main contents..." which are the main mandatory contents, then there should not be a question of which content is more important and if missing, it is considered invalid and which content is less important and if missing it is not considered invalid. On the other hand, considering the nature of labor relations, we see that the labor contract can be considered a special form of a contract for the sale of goods; the characteristic sign of this type of contract is labor, which is socially expressed as the work to be done and wages, that is, the price of labor goods. When concluding a labor contract, if the parties do not agree with each other on the work to be done and the wages, then there are not enough conditions to form a labor contract. In addition, due to the special nature of the labor commodity, it can only create value corresponding to the price of labor under certain conditions such as the place of work, time or

work intensity, safety and hygiene conditions... Therefore, when concluding a labor contract, the parties must agree with each other on related rights and obligations to ensure the implementation of the labor contract; these are also the main contents of the labor contract as stipulated in Clause 1, Article 29 of the Labor Code.

Thus, when resolving a dispute where the labor contract falls into the above case, the competent authority to resolve the labor dispute shall declare the labor contract invalid; the employee's rights shall be resolved in accordance with the provisions of law or the collective labor agreement (if any).

- The content of the labor contract violates the prohibitions of the law, such as the case where the parties sign a contract to do things that are prohibited by law, sign a contract to send employees to work abroad to do jobs or in places prohibited by Vietnamese law according to the provisions of Decree No. 152/1999/ND-CP dated September 20, 1999 of the Government regulating Vietnamese employees and experts working abroad for a limited period of time or Decree No. 81/2003/ND-CP dated July 17, 2003 of the Government detailing and guiding the implementation of the Labor Code on Vietnamese employees working abroad. In this case, when resolving the dispute, the competent authority to resolve the labor dispute shall declare the labor contract invalid and force the parties to terminate the labor contract; the rights of the parties shall also be resolved according to the provisions of the law or the collective agreement (if any) at the time of resolving the case.

- Part or all of the content of the labor contract stipulates that the employee's rights are lower than those stipulated in the labor law, collective labor agreement, labor regulations currently applied in the enterprise or restricts other rights of the employee; part or all of the content of the labor contract is an illegal agreement (for example, the agreement that a foreign court will resolve disputes while the enterprise is located in Vietnam and the performance of the contract by the parties is also in Vietnam). In principle

In general, if the labor contract falls into the above cases, the competent authority to resolve labor disputes shall declare the labor contract invalid in part or in whole and force the parties to amend or re-sign the labor contract, in accordance with the provisions of law or regulations of the enterprise, except in cases where the parties agree to terminate the labor contract.

In fact, labor contracts containing restrictions on other rights of employees are quite common and diverse, and cannot be fully listed; therefore, depending on the specific dispute, the competent authority for labor disputes must base itself on the provisions of the current Labor Code, both the general provisions and the provisions on special types of labor stipulated in Chapters X and XI of the Labor Code to resolve labor disputes. In addition, the competent authority for labor dispute resolution must also base itself on legal provisions in other branches of law such as the Law on Marriage and Family, the Law on Complaints and Denunciations, the Law on Drug Prevention and Control, the Law on Child Protection and Care, etc., and even the Constitution, to determine whether the labor contract restricts the rights of employees or not.

3.2.2. Complete regulations on termination of labor contracts.

First: It is necessary to unify regulations on cases of unilateral termination of labor contracts into a specific law.

As analyzed, in addition to the right to unilaterally terminate the labor contract of the employer stipulated in Article 38 of the Labor Code, the cases under the right to unilaterally terminate the labor contract of the employer are also stipulated in Articles 17, 31, and 85 of the Labor Code. These provisions make it difficult for even those with legal knowledge to understand and look up (the evidence is that the Supreme People's Court had to provide guidance and explanations to lower-level courts), and it is even more difficult for employers and employees. Therefore, it is necessary to unify all these provisions into one law instead of stipulating them scatteredly as they are now.

On the other hand, when regulating the right to terminate the labor contract, before regulating the cases of termination, it is necessary to regulate the reasons for termination. For example: The employer has the right to terminate the labor contract for the following reasons: economic reasons, the employee commits a serious mistake, force majeure reasons... and after each of these reasons, specific cases are regulated. This regulation has two advantages: it is clear, specific, easy to look up and understand, and corresponding to each of the above reasons for termination, there are often differences in procedures and legal consequences. The above regulations create convenience and ease of application. However, usually only the reasons for termination are regulated, and specific cases are resolved by precedent.

Second: About disciplinary dismissal.

* From the analysis in the current situation, it can be seen that currently one of the regulations on handling labor discipline in general and dismissal in particular is not unified, affecting the handling of discipline, which is the time limit for handling labor discipline. A question here is when is the time limit for handling discipline? There are two points of view on this issue.

There is a view that: The statute of limitations for disciplinary action is calculated when the employer organizes a disciplinary meeting. Because, if considered from the perspective of legal relations, the disciplinary relationship arises from when the employer requests the employee to conduct a review, organize a disciplinary meeting... that is, from that point on, the rights and obligations of the subjects in this relationship begin to appear.

In our opinion: The statute of limitations for disciplinary action is calculated up to the date the employer issues a disciplinary decision because only when there is a decision can there be a basis to determine that disciplinary action has been taken. Furthermore, the employee can only file a lawsuit requesting the Court to resolve the case when there is a disciplinary decision of dismissal. See more [10, pp. 3-5]

* According to current regulations, the decision on handling labor discipline must be made directly by the employer. They are only allowed to authorize another person to make a decision on handling the form of reprimand or when they are absent (Article 10 of Decree No.

Decree No. 41/CP dated July 6, 1995 of the Government, amended in Clause 4, Article 1 of Decree No. 33/2003/ND-CP dated April 2, 2003 of the Government) is unreasonable and does not correctly reflect the nature and reality of the labor contract relationship. Therefore, in our opinion, it is necessary to stipulate that employers are allowed to authorize when handling and making decisions on disciplinary action, because when concluding a labor contract, employers can also authorize others. Moreover, such a provision is consistent with the reality of production and business activities when the enterprise has many affiliated departments, operating in many different locations.

* Regarding the application of Point b, Clause 1, Article 85 of the Labor Code: According to this provision, the disciplinary measure of dismissal is applied in cases where an employee has been "disciplined and transferred to another job but re-offends during the period when the discipline has not been cleared". In reality, there have been cases where an employee violated labor discipline and had sufficient grounds to apply the disciplinary measure of transferring to another job with a lower salary, but the employer only handled the violation by reducing the salary grade. Therefore, because the employee re-offended during the period when the discipline had not been cleared, the employer handled the violation by dismissal according to Point b, Clause 1, Article 85 of the Labor Code, is that right or wrong?

Some people argue that this disciplinary dismissal is illegal because it is not in accordance with the provisions of Point b, Clause 1, Article 84 of the Labor Code: The form of labor discipline is transferring to another job with a lower salary. But here, the employer only handles it by lowering the salary without transferring to another job.

According to the 2002 Court Summary Report [19, p. 37]: “...such handling is beneficial to the employee, so disciplinary dismissal should be accepted.”

* According to the provisions of Point b, Clause 1, Article 38 of the Labor Code, the employer has the right to unilaterally terminate the labor contract when the employee is disciplined and dismissed according to the provisions of Article 85 of the Labor Code. Therefore, in this case, the employer must issue a decision to dismiss the employee.

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