TERMINATION OF LABOR CONTRACT, EMPLOYEES’ OBLIGATIONS ON NOTIFICATION

Notice when an employee terminates their contract is one of the important obligations entering into a labor contract. However, in reality, are the parties able to conclude this advance notice period more than the law?

1.  Legal regulations on the obligation to notify in advance when the employee terminates the labor contract

According to the  Labor Code 2012, an employee working under an indefinite-term labor contract has the right to unilaterally terminate the labor contract but must notify the employer at least 45 days in advance, except in the case of a pregnant female employee, he/she must take leave according to the instructions of a competent medical examination and treatment establishment.

2.  Can the labor contract state a more advance notice period than the law when the employee terminates the labor contract?

Specific case: According to the indefinite-term labor contract between the employee and the company with the following content: “When unilaterally terminating the labor contract, the employee must notify the Company in writing at least 06 months in advance”. However, when terminating the contract, the employee only notifies in advance within 45 days as the regulations of  the Labor Code 2012. According to the laws, did the employee violate the contract?

In this regard, at present, there are two views as follows:

2.1. Such regulation is legal

The provisions of the Labor Code 2012 are open regulations, not required 45-days-notice. This provision protects both the interests of employees and the interests of the employer.

The  Labor Code 2012 stipulates that employees must notify their employers at least 45 days in advance, which means Notification at least 45-days-notice is the right of the employee. Therefore, the employee can notify within more time. The employer does not force the employee to make a commitment but the employee has made a commitment by entering into a contract and has no other opinion.

Therefore, it is not illegal for the employee to give advance notice 6 months before taking leave in the contract and it is also the right of the employee.

2.2. Such regulation is illegal 

Provisions that the employee must notify the employer at least 45 in advance can be understood as follows:

–  Employees only need 45-days-notice, they have the right to unilaterally terminate the contract, without any other conditions;

–  Employees cannot give less than 45 days-notice, if they want, to protect the interests of the employer;

–  Employees can give more than 45-days-notice. This “at least” regulation is to protect the interests of employees; therefore, that they can be more convenient in arranging jobs.

If there is an agreement between the two parties forcing the employee to give 6 months’ notice, this agreement obviously makes it difficult for the employee, causing disadvantages for the employee compared with the provisions in the labor law. Therefore, it is against the law for the employee to give the company 6-months-notice in writing.

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