In May 2022, Mr. Tien was informed to terminate the labor contract (up to this point he has been contracted for 17 years).

Mr. Tien asked, is that correct and what benefits do you receive after the termination of the labor contract?

Lawyer Tran Van Toan, Khanh Hung Law Office, Hanoi Bar Association answered Mr. Tien's question as follows:

According to Article 4 of Circular No. 03/2019/TT-BNV dated May 14, 2019 of the Ministry of Home Affairs, individuals sign labor contracts to do the jobs specified in Decree No. 68/2000/ND- CP is transferred to implement the labor contract regime, adjusted according to the provisions of the labor law; not falling within the quota of staffing, number of employees and salary fund of agencies, organizations and units; The salary table specified in Decree No. 204/2004/ND-CP does not apply (unless the two parties sign a new labor contract when they agree on salary arrangement according to Decree 204/2004/ND-CP).

The salary in the new contract is not lower than the current salary (the current salary is determined by the coefficient of the current salary multiplied by the base salary plus allowances in accordance with the Party's regulations and the law are enjoying at the time of signing the new labor contract).

The payment of salaries and wages for the signing, performance, change, termination, liquidation and settlement of disputes between the parties shall comply with the provisions of the labor law in Decree No. 145/2020/ND -CP dated December 14, 2020 of the Government detailing and guiding the implementation of a number of articles of the Labor Code on labor conditions and labor relations.

Regulations on entering into labor contracts

Article 20 of the 2019 Labor Code stipulates that a labor contract must be entered into in one of the following categories: A term labor contract is a contract in which the two parties do not determine the term and the time of termination of the contract's validity; Fixed-term labor contract is a contract in which the two parties determine the term, the time of termination of the contract's validity within 36 months from the effective date of the contract.

When the labor contract as prescribed above expires but the employee continues to work, the following shall be done:

Within 30 days from the expiry date of the labor contract, the two parties must sign a new labor contract; during the time when a new labor contract has not been signed, the rights, obligations and interests of both parties shall be performed according to the signed contract; if after 30 days from the expiry date of the labor contract, the two parties do not sign a new labor contract, the signed definite-term contract becomes an indefinite-term labor contract;

In case the two parties sign a new labor contract which is a definite-term labor contract, it is only allowed to sign one more time, after that, if the employee continues to work, he/she must sign an indefinite-term labor contract.

According to Mr. Tran Van Tien, since 2008 he and a public educational institution in Phu Ly city signed a labor contract according to Decree No. 68/2000/ND-CP. By 2020, the city will announce the termination of labor contracts according to Decree No. 68/2000/ND-CP and guide schools to sign contracts under Decree No. 161/2018/ND-CP with a term of 1 month or once every 3 months. By May 2022, the school announced the termination of the labor contract with the employee.

Tran Van Tien, after converting the signing of a labor contract under Decree No. 68/2000/ND-CP to signing a labor contract under Decree No. 161/2018/ND-CP, from 2020 to May 2022, Mr. Tien had implemented many labor contracts with definite term (1 month and 3 months).

Pursuant to the provisions of Article 20 of the Labor Code, the definite-term labor contracts that Mr. Tien entered into and performed have become indefinite-term labor contracts. Since there is no specific information on the reason for terminating the labor contract with Mr. Tien, Mr. Tien is requested to compare the provisions of Article 36 of the Labor Code 2019 on the cases in which the employer has the right to unilaterally terminate the labor contract. Terminate the labor contract and the time limit to notify the employee when terminating the labor contract to know if the school unilaterally terminates the labor contract according to regulations or not?

Pursuant to the provisions of Clause 1, Article 45, Clause 1 and Clause 3, Article 48 of the Labor Code, when terminating the labor contract with Mr. Tien, the school is responsible for: Notifying the employee of the termination of the labor contract in writing; within 14 working days from the date of termination of the labor contract, fully pay the money related to the employee's interests; complete the procedures for confirming the time of payment of social insurance and unemployment insurance premiums and return them together with the originals of other papers if kept by the employees; provide copies of documents related to the employee's working process if the employee requests it.

Based on his working time and participation in compulsory social insurance and unemployment insurance, upon termination of his labor contract, Mr. Tien is entitled to a severance allowance according to the provisions of Article 46 of the Labor Code and the guidance in Article 8 of Decree No. 145 2020/ND-CP of the Government; enjoy unemployment benefits as prescribed in Article 50 of the Employment Law 2013; may reserve the time to pay social insurance premiums according to Article 61 of the Law on Social Insurance to continue to participate in social insurance at the new workplace; or receive a lump-sum social insurance allowance according to the provisions of Article 60 of this Law and the guidance in Clause 1, Article 8 of Decree No. 115/2015/ND-CP of the Government.

Lawyer Tran Van Toan

Khanh Hung Law Office, Hanoi Bar Association