Tiếng ViệtUnlawful termination of employment contracts has become increasingly common in Vietnam, causing serious harm to both employees and businesses. Many workers are suddenly dismissed without proper notice, payment, or compensation, often without understanding their legitimate rights.
So, what exactly constitutes unlawful termination of an employment contract? When is an employer considered to be in violation, and how are employees protected under the latest provisions of the 2019 Labor Code?
In this article, LexConsult & Partners provides a comprehensive overview of the concept, employee rights, complaint and litigation procedures, and practical legal solutions to help you protect yourself effectively in any situation.
1. Definition and Legal Basis for Unlawful Termination of Employment Contracts
1.1. When is termination considered unlawful?
Termination of an employment contract refers to the end of the labor relationship between the employee and the employer, whether by mutual agreement or by law. When the contract is terminated, the rights and obligations of both parties also cease.
However, not every termination is lawful. If either party unilaterally terminates the contract without a legitimate reason, fails to give proper advance notice, or violates the legally prescribed procedures, such termination is considered unlawful termination of an employment contract.
1.2. Legal basis regulating unlawful termination
According to Article 39 of the 2019 Labor Code,
“Unlawful unilateral termination of an employment contract is the case where the termination does not comply with Articles 35, 36, and 37 of this Code.”
Therefore, both the employee and employer are deemed to have unlawfully terminated the employment contract if their action violates the provisions of Articles 35, 36, and 37 of the Labor Code 2019.
2. Employee Rights in Case of Unlawful Termination
When an employee is unlawfully dismissed, the 2019 Labor Code (Articles 40, 41, and 46) sets out specific protections to ensure fairness and compensation.
| Employee Rights | Details | Legal Basis |
|---|---|---|
| Right to reinstatement | The employee has the right to return to their previous position and continue the employment relationship, with protection over income and job security. | Article 41, Labor Code 2019 |
| Right to full salary and insurance | The employee must be paid wages and have all social, health, and unemployment insurance contributions made for the period of unlawful termination. | Article 41, Labor Code 2019 |
| Right to compensation (minimum 2 months’ salary) | The employer must pay at least two months of the employee’s salary as compensation for unlawful termination. | Article 41, Labor Code 2019 |
| Right to severance allowance | If the employee does not return to work, in addition to compensation, they are still entitled to severance pay in accordance with labor law. | Article 46, Labor Code 2019 |
| Right to negotiate additional compensation | If the employer does not wish to reinstate the employee, both parties may agree on additional compensation, at least equal to two months’ salary. | Article 41, Labor Code 2019 |
| Right to claim other damages | The employee can request further compensation for damages such as travel expenses, job search costs, or mental distress. | Civil Code 2015 |
3. Employer’s Liability for Unlawful Termination of Employment Contracts
When an employer unlawfully terminates an employment contract, they are not only required to fulfill the employee’s rights under Article 41 of the 2019 Labor Code, but may also face additional legal consequences.
3.1. Administrative Liability under Decree 12/2022/NĐ-CP
According to Decree 12/2022/NĐ-CP, enterprises can be subject to administrative penalties for unilaterally and unlawfully terminating labor contracts. The level of fine depends on the nature and seriousness of the violation and may include remedial measures, such as reinstating the employee or compensating for damages.
3.2. Obligation to Reinstate and Compensate Employees
If the unlawful termination causes damage to the employee, the employer must compensate based on the principles of the 2015 Civil Code, including financial losses, emotional distress, or other proven damages.
The employer’s key obligations include:
– Reinstating the labor contract and allowing the employee to return to work;
– Paying back wages and making full social, health, and unemployment insurance contributions for the affected period;
– Providing severance pay or other agreed compensation to ensure the employee’s legitimate rights.
4. How to Protect Your Rights in Case of Unlawful Termination
When facing unlawful termination, employees should avoid emotional reactions and instead follow the official labor dispute resolution process. The following steps help protect legal rights effectively:
4.1. Gather and Preserve Evidence
– Keep copies of the employment contract, termination notice, pay slips, emails, and social insurance records;
– These documents are essential to prove the employer’s violation;
– Ensure that evidence is collected legally to avoid counterclaims.
4.2. File a Complaint Against the Termination Decision
– The employee may first file a complaint directly with the employer (Article 15, Decree 24/2018/NĐ-CP);
– If unresolved, the employee can escalate the complaint to the Chief Inspector of the Department of Labor, Invalids and Social Affairs.
4.3. Labor Dispute Mediation
– Under Article 188 of the 2019 Labor Code, most individual labor disputes must go through conciliation before litigation;
– This process allows both parties to negotiate and resolve disputes more efficiently, saving time and cost.
4.4. Filing a Lawsuit in Court
– If mediation fails, the employee may file a labor dispute lawsuit at the People’s Court;
– Statute of limitations: 1 year from the date of discovering the violation (Article 190, Labor Code 2019);
– This is a crucial legal step to claim compensation, back pay, or job reinstatement.
4.5. Role of Trade Unions and Labor Lawyers
– Trade unions: assist in negotiation, complaint procedures, or representation during disputes;
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Assess the legality of the termination;
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Prepare documentation and evidence;
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Represent the employee in court or during settlement negotiations to protect their rights.
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5. Key Notes When Filing a Lawsuit for Unlawful Termination of Employment
– Mediation before litigation: Most individual labor disputes must go through a labor conciliator under Article 188 of the 2019 Labor Code, except for cases listed in Clause 1 of the same Article, where mediation is not mandatory.
– Statute of limitations: According to Article 190 of the 2019 Labor Code, employees have one year from the date of discovering the violation to file a lawsuit. After this period, the right to sue expires.
– Document and evidence preparation: Employees must provide their employment contract, termination notice, payslips, and social insurance records to prove that the employer unlawfully terminated the contract.
– Costs and duration: Labor disputes can be time-consuming and may involve costs related to court procedures and lawyer fees.
– Difficulty returning to work: Even if the court orders reinstatement, maintaining the employment relationship may be challenging in practice due to workplace tension.
6. Legal Assistance from LexConsult & Partners
In many cases of unlawful termination, employees often lack legal knowledge or struggle to prove their claims, while employers typically have dedicated HR and legal teams.
To ensure fairness, having a labor dispute lawyer by your side is essential. With extensive experience in employment and labor law, LexConsult & Partners provides:
– Legal assessment: Evaluate the legality of the termination and identify violations committed by the employer or employee;
– Representation: Draft complaints and lawsuits, represent employees during negotiation, mediation, and litigation;
– Financial protection: Claim unpaid wages, severance pay, unpaid social insurance contributions, and compensation for other damages;
– Strategic advice: Guide employees on whether to pursue reinstatement or request compensation for optimal benefits.
7. Frequently Asked Questions (FAQ)
When is termination considered unlawful?
→ When the employer or employee unilaterally ends the contract without a lawful reason, without notice, or in violation of legal procedures under the 2019 Labor Code.
What compensation does an employee receive after unlawful termination?
→ Reinstatement to the previous position, full back pay and insurance contributions, at least two months’ salary in compensation, and severance pay if not returning to work.
What if the company refuses to take the employee back?
→ The parties may agree to end the employment relationship, but the employer must pay an additional compensation of at least two months’ salary (Article 41, Labor Code 2019).
Is mediation required before suing for unlawful termination?
→ Yes, under Article 188 of the 2019 Labor Code, most individual disputes must go through mediation—except in certain cases such as unlawful dismissal.
How long does the employee have to file a lawsuit?
→ The employee has one year from the date they discover the violation (Article 190, Labor Code 2019).
What documents are needed to file a labor lawsuit?
→ Employment contract, termination decision, payslips, social insurance records, relevant emails or messages, and a valid complaint or petition.
Who can assist in a labor dispute?
→ Trade unions, labor conciliators, or labor lawyers from LexConsult & Partners — who can represent and protect your legal rights.
What penalties apply to employers for unlawful termination?
→ Under Decree 12/2022/NĐ-CP, employers may face fines up to VND 75 million, be required to reinstate employees, pay back wages, social insurance, and compensate for damages.
Unlawful termination not only affects employees’ income, benefits, and career stability but also exposes employers to severe legal and reputational risks.
To protect your rights, employees should understand the law, gather evidence, and act according to legal procedures. In complex cases, LexConsult & Partners’ labor lawyers will accompany you from complaint and mediation to litigation, ensuring fair compensation, reinstatement of rights, and justice in employment.
Contact LexConsult & Partners’ labor lawyers today for strategic legal advice, assistance in preparing your complaint or lawsuit documents, and full protection of your lawful rights and interests.
Hotline: 0938.657.775
Email: info@lexconsult.com.vn
**Related Articles:**
– [Labor Disputes in Vietnam: Causes, Procedures & Legal Solutions]
– [Compensation for Breach of Labor Contracts: Latest Legal Regulations in Vietnam]
– [Labor Lawyer Services in Vietnam | Consultation & Dispute Resolution]
