Illegal termination of the contract
Question: DTD & Associates LLP let me ask: I had worked for Company X since February 17th, 2017 with a definite-term contract of 3 years. Currently, the contract has expired but I still do not receive any notice of company X on contract expiration or contract extension and I still worked as usual from the expiry date to now is 4 months. On June 1st, 2020, Company X terminated the contract with me because the contract expired. I would like to ask if there is any way for me to return to work at the company? I sincerely thank you!
Answer: Hello, Thank you for trusting and sending your request for legal advice to DTD & Associates LLP. The content of your question has been researched and advised by our team of lawyers as follows:
+ Labor Code 2012
According to the information you provided, the contract you signed with company X is a Definite-term labor contract according to Point b, Clause 1, Article 22 of the Labor Code 2012:
“b/ Definite-term labor contract;
A definite-term labor contract is a contract in which the two parties determine the duration and the time of termination of the contract within a period of between 12 months and 36 months.”
The expiry of the labor contract without any notice to you from company X on the extension of the contract or termination of the contract is specified in Clause 2, Article 22 of the 2012 Labor Code:
“2. When a labor contract stipulated at Points b and c, Clause 1 of this Article expires and the employee continues working, within thirty (30) days from the date of expiration of the contract, the two parties shall sign a new labor contract; if no new labor contract is entered into, the contract entered into under Point b, Clause 1 of this Article will become an indefinite-term labor contract…”
The fact that company X wants to terminate the labor contract with you is not in the cases of unilaterally terminating the labor contract according article 38 of the Labor Code 2012. This behavior of company X is considered one of the unilateral acts of contract termination illegally. Therefore,company X will have to reinstate you and compensate a reasonable amount as prescribed by law.
“Article 42. Obligations of an employer when unilaterally terminating a labor contract illegally
1. To reinstate the employee in accordance with the original labor contract; to pay the wage and social insurance and health insurance premiums for the period during which the employee was not allowed to work, plus at least 2 months’ wage in accordance with the labor contract.
3. In case the employer does not want to reinstate the employee and the employee agrees, in addition to the compensation stipulated in Clause 1 of this Article and the severance allowance stipulated in Article 48 of this Code, the two parties shall negotiate on an additional compensation which must be at least equal to 2 months’ wage in accordance with the labor contract in order to terminate the labor contract.
4. In case the position or job agreed in the labor contract is no longer vacant and the employee still wishes to work, the employer shall pay the compensation stipulated in Clause 1 of this Article and both parties shall negotiate to modify and supplement the labor contract.”
Therefore,you are entitled to require company X to reinstate you under the contract signed and pay the wage, social insurance, health insurance in the days you are not allowed to work, plus at least 02 months’ wage in accordance with the labor contract. In addition, in case the position or job agreed in the labor contract is no longer vacant and you still wishes to work, apart from the compensation as stated, the both sides may modify and supplement the labor contract.
