Question:

“Let me tell you my history with Company A.

I'm a foreign worker and I'm currently having a hard time resolving the termination of employment with my old company.

I started working with my former employer (Company A) last May 16, 2021. Supposedly, I should sign a contract with them last first week of June 2021, it's just that upon reading the details stipulated in the contract, I am at the disadvantage side because of:

1. Maximum working hours stated in the contract is 8, but the reality is, we work 10 hours from Wed to Sun (Tuesday, 6 hours since from afternoon til evening only),

2. According to Contract, I should have undergone probationary period for about 1 month or so and the salary I will earn will just be 500 USD (1/3 of the supposed salary and the law states that probationary period's compensation should be 80%, not to mention that I am the only teacher they have that has official certificate); and

3. My official start date with them would be July 1, when in facy I have started working with them since May 16.

With all those points, I have told them that some informations are not accurate and they told me that they will change it.

By the way, during this time they have already processed my VISA even without a contract. I don't know how.

Almost 2 months have passed, still no update whether they will give me a contract or not. Then I tried applying in School X (located in Hanoi), and was given an offer.

I did not accept the offer yet for I have to ask for their permission. They are willing to let me go such that I have to render some days until the end of the VISA they have provided (will expire on 4th September 2021) which I understood and agreed upon.

Now, after some time, I have ask them if they can provide me with Termination of Contract, no response with regard to it, even request me to compensate for my labor termination inform. The HR of School X intervened by calling the police office in charge of our school and immigration, both have told me to deal with my former employer personally. During this time, I am still working under them. I have asked a VISA agent if he could helped me, but he gave up and said he couldn't

I have plead them to sign the Termination of Contract or even provide me with a Certificate of Employment but they keep reasoning that the director is busy and so on and so forth.

Now, I am really anxious because if they will not give me the Termination of Contract before this Sunday (22th August 2021), School X might refuse me.”

TKB Law Firm’s reply:

After reviewing the dossiers and documents attached to the above consultation request, TKB Law Firm has the following advices:

1. The nature of the labor relationship between you and Company A is an actual labor relationship even though a written contract has not been signed.

Based on your conversation between you and Company A through some applications such as Zalo, Facebook, Gmail, etc. and your actual working process at Company A, we have a basis for judgment that you and Company A have established an actual labor relationship and are considered legally valid labor relations, specifically:

• On the basis of practice: You have worked and been paid hourly wages by Company A during the entire working period (probation) mentioned above (even though you did not sign a labor contract). During the working process, you are under the management, administration and supervision of Company A.
• On the basis of labor: Clause 1, Article 13 of the 2019 Labor Code stipulates: “1. A labor contract is an agreement between an employee and an employer on paid employment, wages, working conditions, rights and obligations of each party in the labor relationship”. Thus, despite the fact that you and Company A have not yet signed a written labor contract, but an employment relationship has arisen because of the actual working (probation) process, you are paid salary by Company A, so when you and Company A do not agree to continue on working conditions and income, the Employee (ie you) has the right to unilaterally terminate the labor contract (probationary relationship) ahead of time. according to the labor law. In addition, during the working process, Company A continues to show signs of violating the principle of entering into a labor contract with you.
• On the principle of entering into labor contracts: Clause 1, Article 15 of the Labor Code stipulates: “1. Voluntary, equal, goodwill, cooperative and honest.” During the contract negotiation process, because you do not agree with a number of terms in the contract (did not correctly record the actual working date on the contract, some terms are not agreed, you propose to correct but the Company A did not amend and prolong the contract signing process while you were actually working at the Company), so your request to terminate the actual work you are doing for the Company is completely in accordance with the law legislation. When one of the parties believes that an agreement cannot be reached and the conclusion of the contract is not performed in accordance with the above principles, it is natural for the failure to agree to sign the contract.

With the factual basis and the legal basis analyzed and cited, we have absolutely a basis to believe that you have the right to unilaterally terminate the probationary period and when you no longer work at Company A, you of course have the right to request and recommend Company A to issue a Decision on termination of employment, which is completely in accordance with the law, is the basis for you to work at a new workplace and renew your visa, other documents, other relevant papers in accordance with the law.

2. Company A's request for you to compensate for not continuing to work at the company is unfounded

Because your working history at Company A is a probationary period, based on the provisions of Article 27 of the Labor Code 2019: “During the probationary period, each party has the right to cancel the probationary contract or contract. labor contract without prior notice and without compensation", your notice of resignation is completely in accordance with the law and you are not obliged to compensate.