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

through wages, and for employers, it is the profits they earn when paying the input costs of the production process. Normally, for one party, when those goals are not achieved or in cases prescribed by law, maintaining the signed labor contract is not really meaningful and does not bring benefits to them. Therefore, that party can cite the provisions of the law to unilaterally terminate the performance of the obligations and benefits agreed upon in the contract.

The right to unilaterally terminate the labor contract of the parties in the labor contract relationship can be understood as follows: The right to unilaterally terminate the labor contract is the ability of the employee or employer to terminate the labor contract regardless of the will of the other party in the labor contract relationship as recognized by law, in order to free the parties from previous agreements in the contract.

Firstly, legal regulation of the implementation of the right to unilaterally terminate the labor contract of employees.

As analyzed, the right to unilaterally terminate the labor contract of the employee has the following characteristics: (i) It is the ability of the employee to act, in other words, whether this ability is used by the employee or not depends on the subjective will of the subject; (ii) The ability of the employee to unilaterally terminate the labor contract is recognized and permitted by law. The recognition of the law ensures that the legal value of this right is firmly guaranteed.

Maybe you are interested!

However, the right to unilaterally terminate a labor contract is a limited right, meaning that this right can only be exercised within the framework of the law. Because the right to unilaterally terminate a labor contract depends entirely on the will of the person terminating it, not on the will of the other party. If the law does not limit this right, the subject will abuse it, affecting the legitimate interests of the other party. Thus, it will not be able to demonstrate the goal that the right to unilaterally terminate a labor contract aims for, which is to reconcile the freedom of one party with the interests of the other party and the interests of society.

Normally, the limitation of the right to unilaterally terminate the labor contract is reflected in two issues: content and procedure. The content here is the basis for terminating the labor contract. Procedure is the regulations that the parties must comply with when terminating the labor contract. The principle of ensuring the right to freedom of employment in accordance with the health, working capacity, and professional qualifications of the employee, the right to unilaterally terminate the labor contract is a necessary guarantee for these freedoms. The law regulates the right of the employee to unilaterally terminate the labor contract in the following specific contents:

First, employees who want to unilaterally terminate the labor contract must have a reason.

The grounds for employees to unilaterally terminate the labor contract in different countries may be regulated by law differently. However, basically, those grounds can be reflected in the following issues: (i) Working conditions are not in accordance with the labor contract; (ii) Employees are not paid in full and on time, which is also the basis for them to unilaterally terminate the labor contract; (iii) Employees are legally dependent on the employer, but do not have the meaning of being physically dependent on the employer, and the employer does not have the right to mistreat, insult the honor, dignity, or force employees to work against their will. Such acts not only violate labor laws, but also violate civil rights, human rights, and other rights.

people. Therefore, employees have the right to unilaterally terminate the labor contract when they are mistreated or forced to work [41, Article 38]. The Russian Labor Code stipulates the reasons why employees can unilaterally terminate the labor contract when they are not able to continue working or because the employer violates the provisions of labor law or collective labor agreements... [32, Article 80]. The reasons that Filipino employees can cite when they want to unilaterally terminate the labor contract are: being seriously insulted; being treated inhumanely; the employer committing a crime against the employee and their family members... [45, Article 284].

In addition, in many cases, although the employer still ensures the rights of the employee, however, if the employee cannot continue to perform the work according to the contract, their right to unilaterally terminate the labor contract is also recognized. For example: when the employee or his family encounters difficult circumstances (moving to a place too far from the workplace, being sick for a long time without recovery, etc.); a pregnant female employee must rest according to the doctor's request, etc.

The Chinese Labor Contract Law (2007) also stipulates that employees have the right to unilaterally terminate the labor contract in case the employer does not pay social insurance premiums for employees according to the law or the internal regulations of the enterprise violate the law, thereby affecting the rights of employees.

Thus, the law regulates the right to unilaterally terminate the labor contract of the employee in the following direction: The employee has the right to unilaterally terminate the labor contract in case the employer violates the labor law or for personal reasons, the implementation of the labor contract causes difficulties for the employee. The law regulating the right to unilaterally terminate the labor contract has the effect of promoting positive impacts when the employee uses this right, which is: terminating the labor relationship that is no longer suitable, causing difficulties for the employee, ensuring the employee's right to freedom of employment, limiting lifelong binding with an employer. At the same time, it also avoids the case where the employee abuses the right to unilaterally terminate the labor contract, causing difficulties for the employer, especially in cases where the employer has spent time and effort training the employee but the employee does not work for the employer.

Second, employees who want to unilaterally terminate the labor contract must notify the employer a certain period of time in advance.

The provision of advance notice to the employer about the employee's decision to unilaterally terminate the labor contract is necessary, because at this time the employer is in a passive position. The advance notice procedure is carried out so that the employer can prepare to recruit new replacement employees, ensuring that the production and business process of the enterprise is not interrupted, and that the personnel are stable... The advance notice period can be long or short depending on the reason for unilateral termination of the labor contract or the type of labor contract of the employee. The advance notice must be in writing and the advance notice period is calculated in working days. In reality, labor laws of all countries stipulate the advance notice period when the employee wants to unilaterally terminate the labor contract. German labor laws stipulate that for unilateral termination of the labor contract with advance notice: the advance notice period is 4 weeks, on the 15th or last day of the month [132; 176]. The Philippine Labor Code (1974) requires employees to give one month's notice of this reason, otherwise they will be liable for damages [45, Article 285]. The Russian Federation's regulations are very strict when

Requires employees to unilaterally terminate the labor contract to notify the employer in writing at least 2 weeks in advance for all cases (if the Labor Code and other documents do not provide for this).

other regulations) [32, Article 80]. Cambodian Labor Law (1997), Australian Law requires that when unilaterally terminating a labor contract, the employee must notify the employer a certain period of time in advance [183, pp.416 - 417].

Thus, in general, labor laws of all countries stipulate that unilateral termination of a labor contract by an employee requires a certain amount of advance notice to the employer to be considered legal. The length of the notice period when an employee wants to unilaterally terminate the contract is often determined depending on the reason for termination, the type of labor contract and the specific case.

Regarding labor leasing (or labor dispatch), it is a newly emerging social relationship regulated by labor law. The unilateral termination of the labor contract of a labor leasing relationship has some special characteristics compared to the unilateral termination of a normal labor contract. This content is included in the Labor Code by the laws of countries [23, Chapter III, Section V], is a content in the Labor Contract Law [41, Article 57 - Article 67] or is an independent legal document, such as the Law on Ensuring Appropriate Implementation of Labor Dispatch Transactions and Improving Working Conditions for Dispatched Workers, 1985 of Japan; Law on Protection of Dispatched Workers, 1998 - 2009 of Korea... [111]. The leased employee exercises the right to unilaterally terminate the labor contract with the labor leasing enterprise as in the case of the employee unilaterally terminating the labor contract with a normal employer [41, Article 65; 23, Article 58].

In the case of employees being mistreated or forced to work, the laws of some countries allow them to immediately terminate the labor contract without specifying a notice period due to the employer's serious violation of labor laws and other legal documents, such as the Russian Labor Code [32, Article 4, Article 84]. The Philippine Labor Code also stipulates similar content in Article 285. In addition, ILO Conventions No. 29 (1930) and No. 105 (1957) also have strict regulations on forced labor.

Second, regulate by law the implementation of the employer's right to unilaterally terminate the labor contract.

From the perspective of ensuring the freedom to hire and use labor in accordance with the production and business needs of the employer, unilateral termination of the labor contract creates the possibility that the employer does not necessarily have to bear the pressure of having to cooperate with the employee for a long time when its production needs change or when the employee does not meet the requirements of the assigned work. Therefore, legal regulation of the employer's unilateral termination of the labor contract is necessary.

First, just like when an employee wants to unilaterally terminate the labor contract, to have the right to unilaterally terminate the labor contract, the employer must have a reason.

The law stipulates this content because the employer is the party that plays a management role in the

labor process, has higher initiative than the other party, if the employee's labor contract is unilaterally terminated arbitrarily, without reason, or for an unreasonable reason, then almost

The employee suffers many very unfavorable consequences. The reasons given in this case must be recorded in labor law documents.

Based on economic, political and cultural conditions, the laws of each country may have different regulations on the reasons for termination of the labor contract by the employer. Usually, these are the following basic reasons:

The first reason is that continuing to implement the labor contract with the employee will be a huge financial burden for the employer in case the enterprise encounters difficulties, leading to having to cut down on labor, reduce production and business. Continuing to maintain the labor relationship in this case puts the employer under financial pressure and makes it difficult for the employer to have enough resources to restore operations. Because, if the employer cannot terminate the contract with the employee, they still have to ensure the payment of wages and other benefits, pay social insurance, health insurance, unemployment insurance while in reality the employee has no work to do, the product cannot be consumed... Therefore, in this case, the employer has the right to unilaterally terminate the labor contract with the employee as stipulated in Laos [44, Article 29]; Russian Labor Code [32, Article 81]; Chinese Labor Contract Law [41, Article 41].

The second reason why employers need to terminate labor contracts with employees is the issue of changes in structure and technology. Along with the development of science and technology, machinery is increasingly modern and contributes to liberating human labor. This leads to a surplus of labor or employees who are not qualified enough to use machinery and equipment. In addition, changing products and changing the organizational structure of the enterprise is also considered a change in structure and technology. The above cases lead to employers no longer needing employees to continue working under the previous contract. At this time, employers really need to terminate labor contracts with employees. The laws of all countries have provisions on this content to ensure the legitimate interests of employers.

The reason for natural disasters and force majeure that employers encounter is completely beyond their will and expectation. Employers have tried every measure to limit the damage but still cannot overcome it, and are forced to reduce jobs, then the law allows them to unilaterally terminate the labor contract with employees. The Russian Labor Code stipulates: In case of an emergency that results in preventing the continued implementation of labor relations (such as war, disaster, natural disaster, serious epidemic and other serious situations), if such events are recognized by the Federal Government or the corresponding local authorities, employers may terminate the labor contract regardless of the wishes of the parties [32, Article 83, paragraph 7]. Myanmar law also stipulates that if unforeseeable causes are encountered, employers may unilaterally terminate the labor contract [108, p.59].

In addition, the employer also has the right to unilaterally terminate the labor contract with many workers when the enterprise ceases operations due to bankruptcy or dissolution [32, Article 81, Clause 1; 50, Articles 163-165;]. In this case, the employee cannot continue working, therefore, the employer has the right to unilaterally terminate the labor contract with all employees in the unit without exception.

Termination of labor contracts for economic reasons is an objective necessity recognized by the laws of many countries because it helps employers reorganize production and improve their competitiveness. In addition to the grounds that allow employers to unilaterally terminate labor contracts from their side, the law also stipulates cases where employers are entitled to unilaterally terminate labor contracts due to reasons from the employee.

Employers recruit employees to work with the hope that they will bring benefits to the company and contribute to the development of the company. However, in the event that employees do not complete the work according to the labor contract, the employer is not responsible for continuing to use the employee, because it not only causes financial burdens in terms of salary, insurance, etc. paid to employees, but also does not ensure the production and business requirements of the company. Therefore, in this labor relationship, the employer does not meet the needs when entering into a labor contract, so the law allows the employer to terminate the labor contract, which is necessary [32, Article 81, Clauses 3, 5; 41, Article 40, Clause 2].

In addition, when recruiting employees, employers not only pay attention to the employees' working capacity but also pay attention to their sense of discipline and personal qualities. Labor discipline is one of the important measures for employers to exercise their management rights, in order to ensure effective production and business. Compliance with labor discipline is also a condition for employees to fulfill their labor obligations. Therefore, depending on the level and fault of the violation of labor discipline, employees can be disciplined by dismissal - the most severe form of discipline applied by employers to employees [20, Article 85]; or have acts of corruption, bribery, implementing labor relations with other units... seriously affecting the interests of the enterprise [41, Article 39, paragraphs 3, 4]. The Russian Labor Code stipulates serious violations of labor responsibilities to the extent that employees are terminated from their labor contracts, such as: arbitrary resignation; Absent from the workplace without a valid reason for more than 4 consecutive hours during a working day; being drunk, under the influence of alcohol, drugs, or other stimulants at the workplace; disclosing secrets that must be protected as prescribed by law that the employee knows while performing his/her work duties; including disclosing confidential personal documents of other employees; committing acts of theft at the workplace, embezzlement, intentional destruction of property or damage to personal or business property... [32, Article 81, paragraphs 6 and 7]. When the above disciplinary measures are applied, the employee is of course not allowed to continue to perform the signed labor contract. The employer terminates the labor contract in this case to ensure discipline, order, and stability in the production and business process of the enterprise.

In addition, poor health of employees is also a basis for employers to unilaterally terminate the labor contract. When employees do not ensure their health, it will affect their own working ability, affect the production and business of the enterprise, employees cannot perform the labor contract regularly, work productivity is unstable and long-term sick leave causes difficulties for employers when having to find temporary replacement employees... For the stability and development of the enterprise, at the same time, to ensure the legitimate interests of employers, when employees are sick and have been treated for a long time but their working ability has not yet recovered, employers have the right to unilaterally terminate the labor contract. Labor laws of China [41, Article 40], the Philippines [45, Article 284], Laos [44, Article 29] also recognize that employees who are sick, are being treated for illness, are not entitled to unilateral termination of the labor contract.

Long-term air is a case of force majeure, beyond the will of the parties. The employee terminates the contract for medical treatment, the employer exercises the right to organize and manage activities in the enterprise, so it can proactively terminate the signed labor contract.

However, the labor laws of most countries do not allow employers to unilaterally terminate labor contracts in the following cases: Employees are sick, have work-related accidents, or are undergoing treatment at the request of a doctor; Employees are pregnant, on maternity leave, or breastfeeding, or raising children under 12 months old; have worked continuously for the unit for at least 15 years and have less than 5 years left until retirement age... [41, Article 42]. In addition, there are a number of grounds on which employers are not allowed to terminate labor contracts due to female employees getting married, or due to employees being union members and participating in union activities; or is on annual leave, personal leave and other leave cases permitted by the employer... ILO Convention 158 on Termination of Employment and Recommendation No. 166 (1982) stipulate in Article 5 the reasons that the employer cannot use to unilaterally terminate the employment contract: (i) Joining a trade union or participating in trade union activities outside working hours, or during working hours, with the consent of the employer; (ii) applying for, working or having served a term as a representative of the employee; (iii) filing a complaint or having participated in proceedings against the employer for the legal provisions cited, or having filed an appeal to the competent administrative authorities; (iv) Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national or social origin; (v) Leave of absence during maternity leave... The above regulations aim to protect employees in adverse and difficult circumstances and to limit abuse by employers when using the right to unilaterally terminate the labor contract.

Second, about the procedure for the employer to unilaterally terminate the labor contract.

Just like employees unilaterally terminating their labor contracts, when employers use this right, they must also notify employees in advance so that they know and are more proactive before the labor contract is terminated, such as: preparing mentally, finding a new job, rearranging their lives (if necessary) and avoiding work interruption after the labor contract is terminated... The employer's notice period must be a reasonable period of time (Convention No. 158, Article 11).

Therefore, the law regulating the right of employers to unilaterally terminate labor contracts has stricter and more stringent requirements than that of employees. For example, employers must properly and fully comply with the procedures prescribed by law; ensure procedures for prior notification and consultation with the trade union; and not violate prohibited cases... This is understandable, because in labor relations, employees are always in a weaker position, so the conditions for terminating labor contracts aim to ensure that employers do not abuse their right to unilaterally terminate labor contracts, and to ensure the balance of interests between the parties when employers want to unilaterally terminate labor contracts. The ILO has stipulated the conditions for dismissal of employees in Convention No. 158 and Recommendation No. 166, 1982. In which, it sets out a number of requirements on the form and content of unilateral termination of the labor contract by the employer, such as the employee who is notified of the termination of employment or the employment has been terminated must receive, upon request, a document from the employer stating the reason for termination (Article 13.1). The basis for verification of termination includes: capacity

or the employee’s conduct, or the business’s operational requirements. However, even if there are reasonable grounds for termination, employers must still take certain steps or exercise due diligence when unilaterally terminating employment (Recommendation 166). For example, in the case of termination for employee misconduct, the conduct must be a repeat of one or more offenses, unless the employer has given the employee a written warning in accordance with the regulations.

The laws of some countries generally stipulate a notice period for unilateral termination of a labor contract regardless of the reason, such as China: the employer must give 30 days notice; the Russian Labor Code stipulates at least two weeks notice; Thailand requires the employer to give a written notice of a salary payment period [37]. However, other countries have very specific regulations on this period depending on the term of the labor contract. Malaysia determines the notice period for the employer to be 4 weeks if the employee is hired within a maximum of 2 years from the date of receipt of the notice; 6 weeks if the employee is hired within a period of 2 to 5 years from the date of receipt of the notice; 8 weeks if the contract is at least 5 years from the date of receipt of the notice [34]. Singapore

The Labor Standards Law stipulates that employers must give notice: 01 day in advance if the employee is hired to work for less than 26 weeks; 01 week if the employee is hired to work from 26 weeks to less than 2 years; 02 weeks if the employee is hired to work from 2 years to less than 5 years; and 04 weeks if the employee is hired to work for 5 years or more [52, Article 20]. Taiwan Factory Law (1964) Article 28 stipulates this period from 10 days to 30 days. According to the Labor Standards Law of Japan (1976) Article 20: the notice period is 30 days (but does not apply to employees on probation; working one day at a time; working for no more than 2 to 4 months... according to Article 21). The Korean Labor Standards Law requires employers to give notice to employees 30 days in advance except in cases of force majeure [38, Articles 26, 35]. The Cambodian Labor Law specifies the notice period for indefinite-term labor contracts, with a term ranging from 7 days to 3 months [43, Articles 73, 74, 80]. The detailed provisions above have the effect of ensuring the rights and interests of employees, giving them a reasonable amount of time to know in advance when they will no longer continue the job they have been working for, and ensuring the livelihood of their families.

In case the employer terminates the labor contract due to economic impact, structural or technological changes, it must also notify the employee in advance [32, Article 84.1; 41, Article 41]. If the enterprise goes bankrupt or is dissolved, it must notify the employee at least two months in advance [32, Article 180], or 30 days in accordance with the Chinese Labor Contract Law [41, Article 41].

In addition, some countries believe that in case of serious misconduct by intention, employees will be dismissed without notice. For example, the Employment Ordinance on Employee Misconduct, Section 26 of Brunei [108, pp.52,52]; Thai Civil and Commercial Code, Section 583 or Article 38, Clause 1, Point b of the Vietnam Labor Code. Article 11, Part D of ILO Convention 158 also determines that employees who commit serious misconduct are not entitled to demand that the employer give notice of termination of the contract.

The trade union (or collective representative of employees) is an organization representing all employees in the enterprise, so it must be notified before the employer terminates the labor contract. The Russian Labor Code stipulates this mandatory content in Articles 82 and 180; China stipulates it in Article 41 of the Labor Law.

Labor Contract; Korea stipulates that the notice period for the union is 50 days [38, Article 24]. Part III, Section A, Article 1 of Convention 158 and Recommendation No. 166 of the ILO also stipulates that the union and employee representatives must be consulted before the employer terminates the contract with them. The role of the union is very important when considering whether the decision is legal or not, and whether it ensures the rights of the employee or not. From there, the union carries out the necessary procedures to ensure the rights of the employee [20, Article 38, paragraph 2]. If the employer does not comply with the above regulations, it will violate the labor law.

This difference in the procedure for unilateral termination of the labor contract by the employer compared to the procedure for unilateral termination of the labor contract by the employee comes from the following reason: The role of the trade union is to protect the rights of the employee, therefore, the law does not automatically recognize the right of the trade union to intervene in the issue of unilateral termination of the labor contract in cases where the employee is completely proactive. If the trade union finds it necessary to intervene in this issue to protect the employee, they need to have a plan to include such contents in the negotiation and agreement when building the collective labor agreement.

Another feature in the notice procedure when the parties unilaterally terminate the labor contract is that the employee must implement the notice period based on the reason for contract termination and the type of labor contract [20, Article 37, Clause 2, except for the case in Clause 3]. Meanwhile, the employer must strictly implement the notice period based only on the type of labor contract signed [20, Article 38, Clause 3; 52, Article 20; 43, Articles 73, 74, 80].

For labor leasing activities (or labor dispatch), the labor leasing enterprise also has the right to handle labor discipline against employees who violate labor discipline, including cases where the employer has the right to unilaterally terminate the labor contract with the employee according to regulations [23, Article 56, Clause 7, Article 38]. In this case, the labor leasing party must provide the labor leasing enterprise with evidence of the labor discipline violation of the leased employee for consideration and handling when exercising the right to unilaterally terminate the labor contract with the employee [23, Article 57, Clause 7].

The content of the legal adjustment on the issue of unilateral termination procedures by the employer is very important. Because, even if the employer unilaterally terminates the labor contract on the right basis, but does not ensure the order and procedures, the unilateral termination of the labor contract is still illegal and must compensate the employee. However, if the law is too strict on this issue, it will cause difficulties for the employer, limit their freedom to recruit, use labor, and take initiative in management [166, p.46]. On the contrary, if the regulations are too loose, it will lead to the situation where the employer "circumvents the law", abuses the right to unilaterally terminate the labor contract to not fulfill the responsibilities according to the commitment in the labor contract towards the employee.

Third, legal regulation on resolving legal consequences of unilateral termination of labor contracts

When the labor contract is terminated, the labor relationship between the employer and the employee no longer exists, the employee has the right to freely find a new job and the employer is no longer responsible to the employee.

Law on unilateral termination of labor contracts - theoretical and practical issues - 6

Comment