Law on unilateral termination of labor contracts - theoretical and practical issues

and is an objective phenomenon arising in the labor process, therefore the thesis focuses on studying the issue of legal adjustment to unilateral termination of labor contracts in the socio-economic context of Vietnam . Citing the laws of some countries is for reference only.

Unilateral termination of labor contracts is a rather complicated issue, which may involve many branches of law such as: Civil Procedure Law, Administrative Law, Criminal Law... Within the scope of the thesis, the author has not had the opportunity to study the adjustment of the law on unilateral termination of labor contracts in other branches of law, but only focuses on studying the law on unilateral termination of labor contracts as a part of the labor contract regime in labor law .

4. Scientific and practical significance of the thesis

In terms of theory, the thesis contributes to consolidating and perfecting the theoretical basis on unilateral termination of labor contracts in Vietnamese law for legislators, competent agencies, researchers, employers and employees to refer to and apply in the process of implementation, dispute resolution or building and perfecting the law on unilateral termination of labor contracts.

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In terms of practice, the thesis contributes to further improving the effectiveness of unilateral termination of labor contracts by the parties in labor relations, as well as the management effectiveness of state labor management agencies. At the same time, the research results provided by the thesis can be used as useful reference materials for research and teaching of labor law in law schools or used in the practical work of the Court, the Labor, Invalids and Social Affairs sector to resolve specific cases related to unilateral termination of labor contracts in Vietnam.

5. Novelty of the thesis

Firstly, the thesis is the first work in Vietnam today to systematically and comprehensively research the theoretical basis of unilateral termination of labor contracts and the law on unilateral termination of labor contracts.

Second , the case law has revealed the need to regulate unilateral termination of labor contracts in economic and social aspects, and especially to regulate by law to implement the right to unilaterally terminate labor contracts of the parties in labor relations. The thesis has codified the law on unilateral termination of labor contracts in Vietnam through the history of formation and development of the law on this issue.

Third, the thesis has analyzed, commented, and evaluated comprehensively and objectively the current legal status of unilateral termination of labor contracts in Vietnam. Thereby, finding out the reasonable and unreasonable points, determining the feasibility of current legal regulations on unilateral termination of labor contracts.

Fourth, analyze and compare the corresponding contents in the laws of countries and the International Convention on unilateral termination of labor contracts in order to make recommendations to amend, supplement and promulgate new regulations on the content and form of legal regulations on unilateral termination of labor contracts in the 2012 Labor Code and documents guiding its implementation.

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The thesis is a systematic research topic on legal issues related to unilateral termination of labor contracts. The author's specific recommendations will be the scientific basis for continuing to build and perfect the law on unilateral termination of labor contracts, contributing to enhancing the effectiveness of labor law regulation in the market economy conditions in Vietnam. The thesis contributes to perfecting the law on unilateral termination of labor contracts, which also contributes to ensuring that labor relations in our country are increasingly stable, harmonious and increase legal safety. Thereby, it will minimize risks for the parties when unilaterally terminating labor contracts and ensure the right to unilaterally terminate labor contracts of subjects protected by law as prescribed.

OVERVIEW OF THE RESEARCH PROBLEM

Unilateral termination of labor contracts always brings certain impacts on the rights and obligations of the parties in the labor relationship. Therefore, this content is considered by legislators, labor managers, researchers and even parties in the labor relationship at home and abroad as an important and fundamental issue, always concerned to find a way to improve.

1. Research situation

1.1. Domestic research situation

Termination of labor contracts in general and unilateral termination of labor contracts are issues mentioned in many theses, dissertations, papers, documents, and research articles from different perspectives on related issues. However, currently in Vietnam, there are still not many topics and in-depth legal scientific research works on this content.

The documents are textbooks and lectures on Labor Law of universities that have written about the issue of unilateral termination of labor contracts in the content of "termination of labor contracts" in the labor contract section. These are textbooks such as: "Labor Law Textbook" of Ho Chi Minh City University of Law, Ho Chi Minh City National University Publishing House published in 2011, edited by Associate Professor, Dr. Tran Hoang Hai; "Labor Law Textbook" of Hanoi Law University, People's Police Publishing House published in 2008, edited by author Chu Thanh Huong; "Vietnam Labor Law Textbook" of Hanoi Law University, People's Police Publishing House 2009, edited by author Luu Binh Nhuong; "Labor Law Textbook" of the University of Labor and Social Affairs published by Labor and Social Affairs Publishing House (2009); “Vietnam Labor Law Textbook” of the University of Social Sciences and Humanities (1999), edited by Pham Cong Tru, Hanoi National University Publishing House. These documents have provided concepts of labor contracts, some basic characteristics of labor contracts and current regulations on termination of labor contracts in the labor contract regime. Because unilateral termination of labor contracts is only a legal act of one party in the labor contract relationship to end the labor relationship, the above documents do not go into specific analysis of the theory, history of formation or legal regulation of this issue in practice...

Every year, at law schools, there are many bachelor's theses written on related topics, including the school-level scientific research topic "Employee's right to unilaterally terminate the labor contract: Current status of application in some enterprises and directions for improvement" by Nguyen Thanh Hiep (2007) Ho Chi Minh City University of Law; Bachelor's thesis on "Employer's right to unilaterally terminate the labor contract - Issues in practical application and directions for improvement", author Vo Ngoc Phuong Chi (2009) Ho Chi Minh City University of Law... These theses present the concept of labor contract, termination of labor contract, the meaning of termination of labor contract. The authors analyze the legal provisions in effect at that time on the right to unilaterally terminate the labor contract of employees and employers. In addition, they provide examples to illustrate the current status of application and directions for improvement of this content. Thus, up to now, it is necessary to further research many issues, both theoretical and practical.

Thesis of Master Tran Thi Luong " Law on termination of labor contracts through practice in enterprises in Ho Chi Minh City " in (2006). The author analyzes the grounds and procedures for termination of labor contracts and devotes a significant part to surveying the current situation of termination of labor contracts in Ho Chi Minh City, finding the causes and inappropriate content to provide directions for improvement. The thesis stops at stating the current regulations on cases of termination of labor contracts and some illustrative examples, we will absorb and analyze, compare with the laws of other countries on this issue to find similarities and differences in the same content of regulation between the laws of other countries.

The topic " Law on termination of labor contracts " by Uong Thi Thai, Hanoi (2008). The thesis studies the basic relationship between the market mechanism and labor law, the characteristics of labor relations. The contents are analyzed based on the summary reports of the practice of the judiciary. The author has access to many labor judgments of the Supreme People's Court and related legal documents, so the evidence is rich and quite convincing. Some contents are statistical data in the summary report (2.3.2, p.37), the author's comments continue to be analyzed and evaluated (p.38: "The law on termination of labor contracts is assessed to have many progressive contents, highly social but still lacking feasibility. The current status of application and implementation shows that many regulations on termination of labor contracts are not suitable for the market economy in the process of transformation, mainly small and medium-sized enterprises, so they have not achieved the desired results'').

The thesis on " Termination of labor contracts and legal consequences " by author Le Thi Ngoc, Faculty of Law, Hanoi National University, 2007, has presented the concept, signs and classification of illegal termination of labor contracts as well as presented the specific characteristics of the labor relationship and its influence on the termination of labor contracts properly and illegally. In the current situation of illegal termination of labor contracts, the author provides data on the situation of violations of the law when terminating labor contracts by the parties, especially violations of the amounts payable to the other party... Through the content of the thesis, the researcher continues to add thorough analysis of the legal consequences as well as the economic and social consequences for employees and employers when terminating labor contracts illegally. Current situation of dispute resolution for termination of labor contracts

Illegal termination of labor contracts is presented logically, from the application of the law in practice to the shortcomings and problems that arise to serve as necessary material for recommendations and to perfect regulations on illegal termination of labor contracts.

The master's thesis " Resolving labor disputes under Singapore and Malaysia law - Lessons learned and the possibility of application to practical conditions in Vietnam " by Tran Ngoc Thich (2010) provided a lot of information on the mechanism of resolving labor disputes under the provisions of Singapore and Malaysia law, including: identification of labor disputes, types of disputes, competent agencies for resolution, procedures for resolution, and results of resolving individual labor disputes due to unilateral termination of labor contracts.

The master's thesis of author Pham Thi Thuy Nga: " Some theoretical and practical issues on labor contracts (2001) and later the doctoral thesis " Invalid labor contracts under current Vietnamese labor law " (2009) mentioned many open understandings of the scientific basis when building the concept of invalid labor contracts; the current status of the concept of invalid labor contracts in Vietnamese law; the principle of good faith in handling invalid labor contracts. Subsection 2.2.2 has some very interesting contents when the author believes that the employee providing false information, which is an important condition, deciding whether the employee is recruited or not, is considered the basis leading to the invalidity of the labor contract. The analysis and evaluation of the provisions of the Labor Code are compared and contrasted by the author with the provisions of the current Civil Code, creating a systematic connection between legal documents. This is a valuable source of reference for the author of this thesis.

The doctoral thesis " Labor contracts in the market mechanism in Vietnam " (2002) by author Nguyen Huu Chi is a systematic and quite comprehensive research work on labor contracts. The author analyzes the theoretical basis for the construction, promulgation and implementation of labor contract law such as: characteristics of labor as a commodity, characteristics of labor relations in the Vietnamese labor market, thereby introducing the concept of labor contracts and its characteristics... The thesis evaluates the current status of regulation and application of labor contract law on concluding, implementing, changing, suspending and terminating labor contracts. However, due to the broad topic, the content on unilateral termination of labor contracts is not much, mainly through a number of court judgments to determine its legality and resolve a number of other related issues such as subsidies, compensation for violations of the law... The thesis has proposed orientations and solutions to improve the law on labor contracts on the basis of respecting the freedom of labor contracts, ensuring the rights and interests of the parties in labor relations. In practice, the research of the thesis has the meaning of contributing to the improvement of the law on labor contracts in order to improve the effectiveness of regulating labor contracts for labor relations in the market mechanism of Vietnam. The thesis was completed quite a long time ago (2002), so some positive legal contents have changed, the part of basic theoretical issues on labor contracts in the market mechanism is still of high value today. The content presented on the management role of the state in the market economy (pp. 48, 52) has really opened up many research issues for us. The thesis is one of the very useful sources of documents for graduate students, especially the part on the concept of labor contract (p. 38).

The monograph “ Social security law - Experiences of some countries with Vietnam ” by Tran Hoang Hai and Le Thi Thuy Huong, National Political Publishing House, Hanoi (2011). In the document, the section “subsidy regimes” mentions an important source of contribution from employees and employers to form a source of payment when employees are sick, pregnant, retired or lose income due to termination of labor contracts... (pp. 51 - 57). The author compares and contrasts similar content in the social security laws of the United States, the Federal Republic of Germany, and the Russian Federation. From these explanations, we are given the opportunity to research one of the consequences of unilateral termination of labor contracts, which is to increase the number of subjects who need to receive benefits such as unemployment benefits, severance benefits, unemployment benefits (unilateral termination of labor contracts according to Articles 37, 38, 44, 45... of the 2012 Labor Code), and social insurance (termination of labor contracts according to Article 36, Clause 4, Article 157 of the 2012 Labor Code...). These funds, in addition to the contributions of the parties in the labor relationship according to the prescribed rate, the state must always ensure enough money to pay such as social insurance, unemployment insurance... Thus, if the rate of unilateral termination of labor contracts increases suddenly, it will not only affect the legitimate rights of the parties (especially unilateral termination of labor contracts in violation of the law), but the whole society will also be affected by this legal act.

The above-mentioned research works of the authors have approached the labor contract and some issues related to the termination of the labor contract, unilateral termination of the labor contract from many different perspectives, which are extremely valuable documents for graduate students in the process of researching their topics. However, there has not been a systematic research work on the theory and comprehensive assessment of the current status of regulations as well as the application of the current labor contract law in our country, on that basis, to make appropriate recommendations to continue to improve the law on unilateral termination of the labor contract.

In addition to theses, dissertations, books, and textbooks, there are also a number of research and discussion articles that provide different perspectives on the chosen topic, which are really useful for the work of perfecting the law on termination of labor contracts in Vietnam, such as: The article " The right to unilaterally terminate labor contracts " by author Dao Thi Hang published in the Journal of Law, No. 4/2001. In the article, the author's analysis of cases of termination of labor contracts, the right to terminate labor contracts is very profound and the concept of "unilateral termination of labor contracts" has been agreed by many legal researchers, which is a source of material for the author of the thesis to apply and develop further. The article " Some recommendations to amend regulations on labor discipline " by author Do Ngan Binh, Journal of Labor and Society (October 2001); Article “ The process of maintaining and terminating labor contracts ” by author Luu Binh Nhuong, State and Law Magazine (No. 175, November 2002); Article “Characteristics of labor contracts ” by author Nguyen Huu Chi, Legislative Research Magazine (October 2002) and article “Termination of labor contracts” published in State and Law Magazine (September 2002); Article “ On the direction of perfecting the labor contract regime in Vietnam ” by author Le Thi Hoai Thu, State and Law Magazine (April 2003 – No. 180); Article “ Some issues on the labor contract regime according to the provisions of the Labor Code and the Law amending and supplementing a number of articles of the Labor Code ” by author Nguyen Huu Chi, State and Law Magazine (April 2003); Article

“ Labor contracts and disputes arising from labor contracts ” by author Nguyen Viet Cuong, State and Law Magazine (April 2003).

The article “ Discussing the severance allowance regime ” by author Nguyen Thi Kim Phung, Law Journal (2003) p.37. The article presents the unreasonableness of excluding retired workers from receiving severance allowance; workers violate labor discipline when they voluntarily quit their jobs according to Article 85 of the Labor Code. We support this viewpoint and in the thesis, we accept and analyze it in more detail.

Article “ Issues that need to be amended regarding Labor Contracts in the Labor Code ” by author Tran Thi Thuy Lam, Law Journal (September 2009). Main content: (i) State different views on termination of Labor Contracts (Article 36 of the Labor Code) and the author agrees with the case of termination of Labor Contracts according to the terms agreed upon by both parties in the contract, as long as it is not against the law;

(ii) The author also analyzes to come to a conclusion about the impossibility of the obligation to pay unemployment insurance, pay severance and job loss allowances of employers; (iii) Affirms that dismissal is essentially the unilateral termination of a special labor contract, which all countries generally call dismissal or termination of labor contracts; (iv) Recommends that enterprises should not be forced to retrain all cases of dismissal under Article 17, but should pay a sum of money for employees to learn a trade themselves.

Article “ Some basic contents of the labor law of the Federal Republic of Germany” by author Dao Thi Hang, Journal of Law, No. 9/2011. In the most general perspective, the author presents the overall legal provisions regulating the relationship between employees, employers and the relationship of affiliated organizations in labor. This article focuses on individual labor law (or labor contract law) on: (i) Recruitment preparation of employers; (ii) Preparation of labor relations; (iii) Establishment of labor relations; (iv) Content of labor relations; (v) Termination of labor relations. Both employees and employers can unilaterally terminate labor contracts in two ways: with prior notice and without prior notice, in addition, employers can also “terminate labor contracts with changes”. The document provides a lot of information about labor contract law of the Federal Republic of Germany, especially on the termination of labor relations. We use some contents of the document as bases for comparison, analysis, and contrast with the law on termination of labor contracts in Vietnam during the thesis research process.

The article " Improving regulations on the responsibility of employers who unilaterally terminate labor contracts illegally " by Tran Hoang Hai and Do Hai Ha was published in the Legislative Research Journal, No. 8 (193) 2011. The document analyzes the shortcomings in the current regulations on the responsibility of employers who unilaterally terminate labor contracts illegally according to Article 41 of the 1994 Labor Code, which was amended and supplemented in 2002, 2006 and 2007: (i) Employers who unilaterally terminate labor contracts illegally must bear the legal responsibilities as prescribed. In addition, in many cases, when having to accept employees back to work according to the signed contract, it is impossible to perform or will cause some adverse consequences for employees and employers; (ii) Regulations on employers having to compensate an amount of money equivalent to the salary and salary allowances (if any) for the days the employee was not allowed to work are not appropriate; (iii) Regulations on salaries as the basis for determining the level of compensation may not ensure compensation for the actual damages of the employee; (iv) Regulations on the responsibility of employers violating the notice period when

Unilateral termination of labor contracts is not clear... In addition, the authors have made a number of recommendations in the Draft Law amending and supplementing a number of articles of the Labor Code for the third time (May 2011). This is a very useful document for the thesis, because the analysis, illustration, and comparison of the content of the regulations on unilateral termination of labor contracts of current Vietnamese law with the laws of other countries are highly convincing.

Workshop on “Contracts and Contract Dispute Resolution” (2011), Faculty of Civil Law, Ho Chi Minh City University of Law, had a number of presentations with related content.

related to the thesis, such as:

The article “ Some proposals to improve the provisions on labor contracts in the Draft Labor Code” by Nguyen Thi Bich. The document assesses the limitations of the 3rd Draft of the revised Labor Code, proposing some contents related to the termination of labor contracts (i) Allowing the parties to sign many types of fixed-term labor contracts according to production and business needs and on the basis of agreement; (ii) If the employee provides false information to be recruited, the employer has the right to unilaterally terminate the labor contract. However, the first proposal still needs to carefully analyze the theory of consecutive signing of labor contracts, what is the meaning and impact on the parties. Especially in the current socio-economic conditions of our country, employees are always in a passive position when signing a contract, so for a long time or their entire working life, they will only be bound to the employer because of the fixed-term contract, which can easily lead to disadvantages in terms of enjoying the benefits of an indefinite-term labor contract, such as the bonus level of the enterprise for the fixed-term contract is often low; it is difficult to have the opportunity to be selected by the enterprise to invest in improving professional qualifications; they are rarely promoted to important positions in the unit; when they want to unilaterally terminate the labor contract, they must comply with the correct and sufficient reasons, notice period... The second proposal would be more reasonable if it included more appropriate analysis and arguments. In the case that the employee provides false information about name, age, place of residence due to loss of documents, or has to deal with the requirement of permanent residence in a specific locality... should this be a condition for the employer to terminate the employee's employment before the end of the term? We will continue to implement the above approach.

Also at this workshop, the article " Termination of labor contracts and consequences of termination of labor contracts - Some recommendations" by author Bui Thi Kim Ngan presented cases of termination of labor contracts, consequences of legal and illegal termination of labor contracts. Recommendations: (i) Specify what constitutes illegal unilateral termination of labor contracts by employers. This content has been supplemented in Article 41 of the 2012 Labor Code; (ii) Propose that employees receive severance pay when they reach retirement age and have specific regulations to avoid losses for employers when they spend money on training employees but then they quit their jobs without having to reimburse these costs. We also have a similar viewpoint and continue to clarify the legality and reasonableness of the above proposals for effective application in practice.

At the Workshop "Contributing ideas to amend and supplement the Labor Code" organized by Ho Chi Minh City University of Law in May 2012, there was very little content related to unilateral termination of labor contracts. Author Bui Thi Kim Ngan continued to contribute ideas to amend Article 41 in the direction of determining: "Unilateral termination of labor contracts in violation of the law is the case of termination of labor contracts not in accordance with the provisions of the law."

1 or Clause 2 Article 37, Clause 1 or Clause 2 Article 38 of this Code”. These are valuable reference contents in researching the topic because it is a legal issue that is facing many difficulties in implementation.

1.2. Research situation abroad

Some foreign documents related to the thesis content:

Book “ Perspectives on Labour law” (2003), ACL Davies, Cambridge. The document contains a presentation of the provisions of the European Charter of Fundamental Rights of the European Union on termination of employment contracts, unilateral termination of employment contracts (pp. 68, 165);

The book “ The Future of Labour law” (2004) , Catherine Barnard, Simon Deakin and Gillians Morris, Oxford and Portland Oregon. The document contains the following contents: (i) Termination of employment contracts (pp.101 – 128); (ii) General law on unilateral termination of employment contracts (p.119);

(iii) Changing views on termination of employment in the UK (pp.130 – 147);

Book “ Globalization and the future of labor law” (2006), John DR Craig and S. Michael Lynk. The document mentions: (i) No discrimination against female workers during pregnancy, ensuring their right to return to work and receive wages equivalent to their position during maternity leave; (ii) No forced termination of employment when workers get married during their employment (p.384).

In general, the above documents compare the laws of different countries on termination of labor contracts or dismissal of employees and determine: (i) The subject's right to terminate the labor contract; (ii) The reason for termination of the labor contract due to economic difficulties of the enterprise, due to excess labor (Directive No. 98/59/EC dated July 20, 1998); (iii) Employees have the right to be protected against unjust dismissal, based on Community law, national law and practices; (iv) Procedures for termination of the labor contract, financial issues of termination of the labor contract, or cases where the employee does not agree to terminate the labor contract and must pay compensation based on the flexibility of the law; (v) To resolve disputes on termination of the labor contract, the court will choose between deciding whether to let the employee return to work or receive compensation.

The book “ Comparative study of labor laws in ASEAN countries” published by the Ministry of Labor, Invalids and Social Affairs in 2010. Contents of subsection 1.2.5: (i) Regarding termination of labor contracts, it is noted that the laws of ASEAN countries all have provisions, expressing the viewpoint of protecting employees at a high level when their labor contracts are terminated; (ii) Unilateral termination of employment by the employer (dismissal) can have adverse effects on the dismissed employee, especially when the livelihood of the employee and their family depends on the income from that job or in cases where labor market opportunities are limited;

(iii) The provisions on dismissal are therefore a particularly important part of employment protection law;

(iv) Governments and social partners often find it difficult to find a balance between workers' needs for income and employment and employers' needs for flexibility in management;

(v) This issue is much discussed in the context of labor market reform. On the one hand, an overly rigid labor market can hinder business and investment opportunities, which can be counterproductive to job growth. On the other hand, an overly loose labor market can increase workers’ vulnerability to job and income security; (vi)

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