Table Of Contents

1. Contract Formation:

Forming a solid labor contract is like building a house. A shaky foundation can lead to cracks and instability later on. Here, we delve into the critical aspects of contract formation, ensuring your employment journey starts on solid ground.

 

1.1. Authorized Signatories: Verifying the Right to Bind

Imagine signing a contract with someone claiming to represent your employer, only to discover later they lacked the authority to do so. This scenario, unfortunately, isn't uncommon. To avoid such pitfalls, remember:

  • Only authorized individuals can bind an employer to a contract. This typically means someone in a high-level management position or someone specifically designated for contract signing. Don't rely on verbal assurances; request written proof, like a board resolution or power of attorney, confirming their signing authority.
  • Beware of Delegation Chains: While delegation is possible, ensure each step has proper written authorization. Double-check if the authority extends to your specific contract. A long chain of delegation without clear documentation can weaken the contract's validity.

 

1.2. Age Restrictions: Protecting Younger Workers

Not everyone has the legal capacity to independently sign a labor contract. Here's a breakdown:

  • Employees under 18: They require written consent from their legal guardian for the contract to be valid. This ensures someone responsible for their well-being understands and approves the terms.
  • Employees 15-18: They can sign some contracts independently, but only for fixed-term positions and with guardian consent. This allows them to gain work experience while ensuring responsible oversight.

 

1.3. Effective Date: Setting the Clock for Rights and Obligations

When does your contract actually "start"? A clear effective date prevents confusion and potential disputes. Here are common approaches:

  • Specified Date: Both parties agree on a specific date (e.g., October 22, 2024). This provides clarity and avoids ambiguity.
  • Start of Work: For seasonal or specific projects, the contract begins when you start working (e.g., October 22, 2024, at 1 PM). This aligns the contract with the actual work performed.
  • Implied Agreement: If a fixed-term contract continues after its end date and the employer accepts your continued work, a new contract by conduct might be implied, starting from your continued work date. This protects you in situations where work continues without a formal extension.

Remember, the chosen approach should be clearly stated and mutually agreed upon. Don't hesitate to ask questions if the effective date seems unclear.

 

1.4. Probationary Periods: Testing the Fit Before Commitment

Some contracts include probationary periods, allowing both parties to assess their suitability for the role. During this time:

  • Specific terms should be outlined: Duration, performance expectations, and consequences of unsatisfactory performance should be clearly defined.
  • Mutual agreement is key: Both you and the employer must agree to the probationary period.
  • Fair evaluation matters: The employer must objectively assess your performance based on predetermined criteria.

Understanding probationary terms and your rights under them is crucial. Seek clarification if anything seems unclear or unfair.

 

1.5. Understanding Non-Compete Clauses: Balancing Protection and Opportunity

Some contracts may include non-compete clauses, restricting your ability to work for a competitor after leaving the company. These clauses:

  • Must be reasonable: They should be limited in scope (geographically and temporally) and protect legitimate business interests. Unreasonable restrictions might be deemed unenforceable.
  • Seek legal advice: If unsure about the clause's implications, consult a lawyer to understand your rights and potential challenges.

Remember: Contract formation is a critical step in your employment journey. By carefully considering these aspects, you can ensure your agreement is valid, protects your rights, and sets the stage for a positive and secure work experience. If you have any doubts or face unusual situations, don't hesitate to seek professional legal advice to ensure your rights are protected from the very beginning.

 

2. Contract Implementation:

Once your contract is formed, its implementation becomes the daily reality of your work life. Here are some common pitfalls to avoid during this stage:

 

2.1. Workplace Changes:

Sometimes, your employer might need you to perform different tasks than initially agreed upon. While flexibility is important, understand your rights:

  • Temporary Transfers: Employers can temporarily transfer you to other jobs for up to 60 days per year under specific circumstances (e.g., overcoming natural disasters, or production needs).
  • Notification and Duration: You must be notified at least 3 days in advance, and the new job should be appropriate for your health and gender.
  • Compensation: You are entitled to be paid according to the new job's salary, with a minimum of 85% of your original salary and no less than the minimum wage.
  • Exceeding the Limit: If transfers exceed 60 days, your employer needs your consent or risks violating your rights.

 

2.2. Contract Modifications:

Things might change during your employment, but altering the contract shouldn't be a unilateral decision. Remember:

  • Mutual Agreement: Any changes to the contract, like responsibilities, working hours, or pay, require your consent and the employer's. Ensure the agreement is documented.
  • Beware of Pressure: Don't feel pressured to sign changes you're uncomfortable with. Seek clarification and, if necessary, legal advice.

 

2.3. Suspension of Work:

Unexpected situations might necessitate temporarily pausing your work. Here's what to know:

  • Reasons for Suspension: Legal reasons like natural disasters, labor accidents, or production stoppages can lead to suspension.
  • Legal Consequences: While you don't receive a salary during suspension, your legal rights and remaining contract time are preserved.
  • Returning to Work: You have the right to return to your job after the suspension ends, and the employer must accept you back.

Remember: Communication and understanding are keys during contract implementation. If you have questions or concerns about any changes or issues, don't hesitate to discuss them with your employer or seek professional guidance.

 

3. Contract Termination:

Ending a labor contract marks a significant turning point in your employment journey. Understanding the different scenarios and potential pitfalls around termination is crucial to ensure a fair and smooth process.

 

3.1. Automatic Termination: When the Contract Ends Itself

Certain events automatically terminate a contract, without requiring specific action from either party. These include:

  • Reaching the end of a fixed-term contract
  • Completion of a seasonal or specific job
  • Mutual agreement to terminate
  • Employees facing imprisonment or losing the right to perform the job due to court decisions
  • Employee death or legal declaration of disappearance or death
  • Employer ceasing operations or dissolution
  • Employee or employer violating disciplinary code leading to dismissal
  • Employee unilaterally terminating under specific legal conditions
  • Employer unilaterally terminating under specific legal conditions
  • Foreign employee work permit expiring
  • Failure to meet probationary requirements or cancellation of probation agreement

Remember, these are just examples, and specific regulations might vary depending on your location and contact details.

 

3.2. Mutual Termination: A Clean and Collaborative End

Sometimes, both parties might decide to end the employment relationship amicably. In such cases, a mutual termination agreement is established:

  • Voluntary and Agreed-Upon: This approach requires genuine consent from both sides, free from coercion or pressure.
  • Timing Flexibility: Mutual termination can occur before or during the contract period.
  • Legal Validity: As long as the agreement doesn't violate any laws, it holds legal weight.

However, ensure the agreement clearly outlines:

  • The effective termination date
  • Any severance pay or compensation details
  • Return of company property (if applicable)
  • Non-compete clauses (if applicable)

Seeking legal advice during this process can help ensure your interests are protected and the agreement is valid.

 

3.3. Unilateral Termination: Navigating the Complexities

One party, either the employer or employee, can also choose to terminate the contract unilaterally (without the other's consent). However, the legality and consequences vary significantly:

Employee Initiated:

The law grants employees the right to unilaterally terminate under specific conditions outlined in the Labor Code. These often involve situations where the employer violates the contract or creates unsafe working conditions. Seeking legal advice before initiating unilateral termination is crucial to understand your rights and ensure you have valid grounds.

Employer Initiated:

Employers can also terminate unilaterally, but strict legal guidelines apply. Common reasons include:

  • Employee performance issues
  • Disciplinary violations
  • Redundancy due to business restructuring
  • Company closure

However, employers must follow specific procedures, providing proper notice and justification, and potentially severance pay depending on the situation. Unfair or unlawful dismissal can lead to legal consequences for the employer.

 

3.4. Invalid Contracts: When Agreements Go Wrong

Not all contracts are created equal. In some cases, a labor contract might be declared partially or entirely invalid due to:

  • Violating legal provisions
  • Incompetent signing parties
  • Specifying illegal work
  • Missing required authorizations

Only the court has the authority to declare invalidity, and the process involves potential amendments, re-signing, or entering new contracts. Seeking legal guidance is crucial in such situations to understand your rights and navigate the process effectively.

Remember: Regardless of the termination method, settling rights, obligations, and potential severance pay is crucial. If disputes arise, consulting a lawyer can help protect your interests and ensure a fair outcome.

By understanding these key aspects of contract termination, you can approach this potentially complex phase with greater clarity and confidence. Don't hesitate to seek professional guidance whenever needed to ensure your rights are protected and the process unfolds smoothly.

 

4. Conclusion

Remember, a labor contract is not just a piece of paper; it's your shield in the workplace. By being aware of common errors and seeking professional guidance when needed, you can transform this document into a powerful tool that protects your interests and ensures a fair and fulfilling work experience. So, don't hesitate to ask questions, clarify doubts, and ensure your labor contract reflects the agreement you deserve. Take charge of your work life, one informed step at a time! If you need further explanation on this subject, please don't hesitate to contact us through email at lienhe@luatminhkhue.vn or phone at: +84986 386 648. Lawyer To Thi Phuong Dzung