When an Employee Unilaterally Stops Working: What Should Employers Do to Avoid Being Deemed an Unlawful Termination?

Situation

In practice, many employers encounter situations where an employee unilaterally stops working and does not return, but later initiates legal proceedings claiming that the employer unilaterally terminated the labor contract. Such disputes often arise not because the employer actually terminated the contract, but because the employer failed to clearly document its position and actions.

Legal Grounds

• Articles 35 and 36 of the 2019 Labor Code of Vietnam
• Article 91 of the 2015 Civil Procedure Code (Burden of Proof)

Legal Analysis

Vietnamese labor law does not presume that an employer has terminated a labor contract merely because an employee stops coming to work. On the contrary, the employee bears the burden of proof to demonstrate that the employer committed one of the following acts:

• Issued a decision to terminate the labor contract;
• Issued a written notice or instruction requiring the employee to stop working; or
• Engaged in any conduct that unlawfully prevented the employee from continuing to work.

Accordingly, where the employer:

• Did not issue any termination decision;
• Did not send any email or written notice instructing the employee to cease work;
• Has documentary evidence showing that the employee was requested or invited to return to work; and
• Has no other evidence indicating an intention to unilaterally terminate the labor contract,

No unilateral termination of the labor contract is legally established.

Recommendations for Employers

To protect their lawful rights and interests, employers should:

• Always issue written notices or emails requesting the employee to return to work;
• Clearly record and document the employee’s non-cooperation or continued absence;
• Avoid informal verbal statements that could later be misinterpreted as an intention to terminate the labor relationship.

PRACTICAL COMPLIANCE CHECKLIST

☐ Prepare written or email records confirming the employee’s unauthorized absence ☐ Send formal notices requesting the employee to resume work, clearly stating the time and workplace ☐ Strictly avoid wording that may imply termination of the labor contract ☐ Clearly inform the employee of potential legal consequences if they fail to return to work ☐ Properly retain all correspondence and records as legal evidence

Conclusion

An employee’s unilateral absence does not automatically constitute termination by the employer. The decisive factor in labor disputes is whether the employer can prove that it did not intend to terminate, and did not take any action to terminate, the labor contract.

Disclaimer: This content is prepared based on the laws and regulations in force at the time of publication and is provided for general informational and legal knowledge-sharing purposes only. It does not constitute legal advice for any specific matter and does not create any commitment or guarantee as to the outcome of any legal process. The application of law must be assessed based on the relevant documents, evidence, factual circumstances, and the laws and regulations in force at the applicable time.

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