Sanctions for dismissing employees without providing prior notice within the prescribed time limit

Labour disputes relating to the dismissal of employees without providing prior notice within the prescribed time remain among the most sensitive and complex legal issues faced by enterprises. The following article provides a detailed analysis of the legal nature of dismissal as a form of labour discipline, thereby assisting enterprises in standardizing their human resources procedures and minimizing unnecessary legal risks.

I. Can enterprises take compensation liability amounting to hundreds of millions of Vietnamese dong for dismissing employees without providing prior notice within the prescribed time?

Identifying financial and legal risks is the first step toward effective and compliant human resources management. In practice, “dismissing an employee without prior notice within the prescribed time” often stems from a misunderstanding among employers who seek to immediately terminate an employee’s right to work without complying with disciplinary procedures or statutory notice requirements.

From a legal perspective, where such termination is determined to constitute an unlawful disciplinary dismissal by a court or labour inspectorate, the employer will be required to take substantial compensation obligations under Article 41 of the Labour Code 2019. Specifically, the employer must reinstate the employee to their former position and pay salary, social insurance, health insurance, and unemployment insurance contributions for the entire period during which the employee was unable to work. In addition, the employer must pay compensation equivalent to at least two months’ salary under the labour contract.

If the employer also violates the applicable notice period requirements, additional compensation corresponding to the salary for the period of notice deficiency will be imposed. For senior employees earning tens of millions of VND per month, the total amount of compensation, salary arrears, and court costs can easily amount to hundreds of millions of VND.

II. Understanding the dismissal of employees without providing prior notice within the prescribed time 

1. What constitutes dismissal of an employee without providing prior notice within the prescribed time under current regulations?

Pursuant to Articles 124 and 125 of the Labour Code 2019, “dismissal” is the most severe form of labour discipline and may only be imposed where an employee commits serious misconduct (such as theft, embezzlement, or unauthorized absence from work for five days).

As a disciplinary measure, a dismissal decision takes effect immediately upon completion of the disciplinary process and does not require advance notice of 45 days or 30 days to the employee. Nevertheless, as dismissal is a form of labour discipline, it must strictly comply with the disciplinary procedures prescribed in Clause 1, Article 70 of Decree No. 145/2020/ND-CP and Article 122 of the Labour Code 2019.

Before imposing disciplinary dismissal, the employer is required to strictly follow the statutory disciplinary process, including the obligation to notify the relevant parties of the disciplinary meeting within the prescribed time. Specifically, at least five working days before the disciplinary hearing, the employer must send notice specifying the time, venue, contents of the meeting, the alleged misconduct, and information regarding the employee subject to disciplinary action to the employee representative organization at the grassroots level (if any), the employee concerned, and other relevant parties.

2. How are notice periods specifically regulated for different types of labour contracts (indefinite-term and fixed-term contracts)?

Pursuant to the Labour Code 2019, the applicable notice period depends entirely on the legal mechanism adopted by the employer:

• If the employer unilaterally terminates the labour contract (Article 36), it must provide at least 45 days’ prior notice for indefinite-term contracts, at least 30 days’ prior notice for contracts with a term ranging from 12 to 36 months, and at least 03 working days’ prior notice for contracts with a term of less than 12 months.
• If the employer imposes disciplinary dismissal (Article 125), the notice requirement is not determined by the type of labour contract (whether fixed-term or indefinite-term). Instead, under Clause 1, Article 70 of Decree No. 145/2020/ND-CP, the employer is only required to comply with the notice period applicable to disciplinary proceedings by sending written invitations to the employee and the trade union at least 05 working days before the disciplinary meeting.

3. What is the fundamental difference between “dismissal” and “unilateral termination of a labour contract” that managers must clearly distinguish?

4. What should employees do if they receive a verbal dismissal notice and are forced to leave work immediately on the same day?

A decision terminating a labour contract must be made in writing. If an employee is verbally dismissed, they should immediately request that the company issue a formal written decision. At the same time, the employee should collect relevant evidence, including emails, text messages, audio recordings, or witness statements.

Then, the employee may file a complaint with the company's Board of Directors, file a complaint with the Chief Inspector of the Department of Home Affairs (following administrative restructuring), or directly initiate legal proceedings before the competent People's Court to protect their rights and interests.

III. Legal regulations relating to the dismissal of employees without providing prior notice within the prescribed time limit

1. How does the labour code regulate the employer’s obligation to provide prior notice?

Firstly, under the Labour Code 2019, the employer’s obligation to provide prior notice is regulated very strictly, particularly in cases of unilateral termination of labour contracts pursuant to Article 36. Specifically, employers must provide at least 45 days’ notice for indefinite-term contracts, at least 30 days’ notice for contracts with a term ranging from 12 to 36 months, and at least 03 working days’ notice for contracts with a term of less than 12 months or where the employee is undergoing long-term medical treatment. For certain specialized occupations and positions (such as enterprise managers and flight crew members), the notice period may extend to at least 120 days or one-quarter of the contract term under Article 7 of Decree No. 145/2020/ND-CP.

Secondly, in relation to disciplinary dismissal under Article 122, the notice obligation requires the employer to send notice of the disciplinary hearing to the relevant participants at least 05 working days before the meeting. However, if an employee is absent from work without a legitimate reason for 05 consecutive working days, the law permits the employer either to unilaterally terminate the labour contract immediately under Point d, Clause 1, Article 36 without prior notice or to impose disciplinary dismissal under Clause 4, Article 125, provided that the disciplinary procedure is still conducted.

2. Which special categories of employees receive the highest level of legal protection against dismissal without proper prior notice?

Labour law establishes special protection mechanisms for vulnerable groups of employees. Pursuant to Clause 3, Article 137 of the Labour Code 2019, employers are prohibited from dismissing or unilaterally terminating labour contracts with employees on the grounds of marriage, pregnancy, maternity leave, or the raising of a child under 12 months of age, except in circumstances where the employer is an individual who has died, been declared by a court to have lost civil act capacity, been declared missing or deceased, or where a non-individual employer ceases operations or is notified by the business registration authority under the provincial People's Committee that there is no legal representative or authorized representative exercising the rights and obligations of the legal representative.

Furthermore, under Clause 4, Article 122 of the Labour Code 2019, employers are strictly prohibited from conducting disciplinary proceedings, including dismissal against employees who are on sick leave, under temporary detention or custody, or female employees who are pregnant, on maternity leave, or raising a child under 12 months of age.

3. Under what legal grounds may an employer terminate a labour contract without waiting for the expiry of the notice period?

Pursuant to Clause 3 Article 36 of the Labour Code 2019, employers may unilaterally terminate labour contracts without prior notice in the following two exceptional circumstances prescribed in Points d and e, Clause 1 of this Article:

• The employee fails to return to work within 15 days from the expiry of the suspension period of the labour contract in accordance with Article 31 of the Labour Code;
• The employee voluntarily abandons work without a legitimate reason for 05 consecutive working days or more.

In summary, the law only permits employers to terminate labour contracts without prior notice in a limited number of exceptional circumstances. Thus, employers must carefully verify the applicable legal grounds before taking such action in order to avoid a determination that the dismissal was unlawful due to failure to comply with statutory notice requirements.

4. What are the proper labour disciplinary procedures required to avoid allegations of dismissing employees without providing prior notice within the prescribed time?

To avoid allegations of unlawful dismissal due to failure to provide proper notice, employers must strictly comply with the disciplinary procedures prescribed under Article 122 of the Labour Code 2019 and Article 70 of Decree No. 145/2020/ND-CP. The procedure includes:

• Step 1: Detecting the violation, preparing a violation report on-site, and collecting supporting evidence.
• Step 2: Sending written notice of the disciplinary hearing to the grassroots trade union executive committee and the employee concerned (at least 05 working days before the hearing).
• Step 3: Conducting the disciplinary hearing with the participation of all mandatory attendees (minutes of the meeting must be prepared, approved, and signed).
• Step 4: The competent authority issues the dismissal decision within the statutory limitation period.

Failure to complete any step of the disciplinary process or non-compliance with the prescribed notice period may result in the dismissal decision being declared unlawful. Thus, strict compliance with the procedures set forth in the Labour Code is a mandatory condition for minimizing labour disputes and compensation liabilities.

5. What are the current fines for violations of notice period requirements?

In addition to civil compensation liability toward employees, employers may also be subject to administrative sanctions. Pursuant to Clause 1, Article 12 of Decree No. 12/2022/ND-CP on administrative fines in the labour sector, violations relating to written notification requirements or notice periods in cases of unilateral termination of labour contracts are subject to fines ranging from 1,000,000 VND to 3,000,000 VND. Under Clause 1, Article 6 of the same Decree, the applicable fine for organizations and enterprises is doubled, up to a maximum of 6,000,000 VND.

IV. Questions regarding the dismissal of employees without providing prior notice within the prescribed time 

1. if an employee resigns without providing prior notice, is the employer entitled to dismiss the employee?

Pursuant to Clause 4, Article 125 of the Labour Code 2019, if an employee is absent from work without a legitimate reason for an accumulated total of 05 working days within a 30-day period or 20 working days within a 365-day period, calculated from the first day of unauthorized absence, the employer is fully entitled to impose the disciplinary sanction of dismissal.

However, the employer may not issue an immediate termination decision. Instead, it is required to conduct the full disciplinary hearing process as outlined in Section III.4 above in order for the dismissal decision to have legal effect.

2. What should an employer do if an employee refuses to receive a labour contract termination notice?

At present, the Labour Code does not contain specific provisions governing procedures for situations where an employee deliberately refuses to receive documents. Nevertheless, to ensure legal validity, if an employee refuses to cooperate, the employer should prepare a minutes recording the employee’s refusal to receive or sign the notice, with confirmation signatures from representatives of the grassroots trade union and witnesses.

In addition, the employer should engage a Bailiff to prepare an official Record of Events evidencing the delivery of the document, or alternatively send the notice by registered mail with return receipt to the employee’s residential address. Such measures will serve as valid evidence before the court in a dispute.

3. Are emails or zalo messages considered legally valid forms of prior notice?

Currently, there are no specific provisions on the form of notice (whether it must be in physical document form or electronic data form).

Pursuant to Article 8 and Clause 2, Article 11 of the Law on Electronic Transactions 2023, data messages such as emails may possess legal validity provided that the reliability of the method used to create, send, receive, or store the data message can be established; the integrity of the data message is maintained; the identities of the originator, sender, and recipient can be verified; and other relevant factors are satisfied.

However, in practice, to avoid evidentiary risks arising from potential falsification or an employee’s denial of having read a Zalo message, employers should use hard-copy written notices bearing the signature of the legal representative and the company seal, delivered directly to the employee whenever possible. Such an approach provides the highest degree of legal certainty.

4. Is it lawful for an employer to conduct “restructuring” as a reason for immediate termination without prior notice?

Workforce reductions resulting from organizational restructuring or technological changes must be implemented in accordance with Point a, Clause 1, Article 42 of the Labour Code 2019.

Specifically, the employer is required to formulate a Labour Utilization Plan, consult with the employee representative organization at the grassroots level (trade union), and provide at least 30 days’ prior notice to both the provincial People’s Committee and the affected employees.

Using “restructuring” as a reason to immediately dismiss employees without preparing the required plan or notifying the competent authorities constitutes a serious violation of the law and may result in the termination decision being invalidated.

5. How are legal fees typically calculated in cases involving the dismissal of employees without providing prior notice within the prescribed time?

Legal fees for handling labour disputes depend on various factors, including the complexity of the matter, the number of employees involved in the claim, and the stage of the proceedings (whether settlement negotiations, mediation, or court litigation).

In practice, reputable law firms commonly apply a fixed professional fee for the advisory and initial document-preparation stages, together with a success-based fee calculated as a percentage of the actual compensation recovered for the client. Such a fee structure helps align the interests of the lawyer and the client to the greatest extent possible.

V. Would you like NPLaw to review your entire human resources process to prevent risks associated with dismissing employees without providing prior notice within the prescribed time limit?

NPLaw Firm is proud to serve as a strategic legal partner for numerous enterprises in the field of labour law consultancy. Our team of experienced lawyers provides comprehensive review and standardization services for human resources management systems, from recruitment through employment termination.

We assist enterprises in drafting Internal Labour Regulations, establishing legally compliant disciplinary procedures, and representing employers in resolving labour disputes, thereby minimizing the risks associated with dismissing employees without providing prior notice within the prescribed time limit.

At NPLaw, safeguarding the legal security of your business is always our highest priority.

The information provided above is for reference purposes only. Should you require detailed advice regarding a specific case, please contact NPLaw Firm for prompt legal consultation.