Vietnam: Salary and number of leave days during the probationary period

Mr. Tham asks: Is it correct for him to receive such a salary during the 12-month probation period? Does he get annual leave during the probation period (from September 1, 2014, to August 31, 2015)? How are his annual leave days calculated for the 36-month fixed-term employment contract starting from September 1, 2015?

Lawyer Le Van Dai, Kanh Hung Law Office, Hanoi Bar Association, replies:

According to Clause 1, Article 20 and Clause 1, Article 22 of Decree No. 29/2012/ND-CP dated April 12, 2012, by the Government of Vietnam on recruitment, use, and management of public employees, successful candidates for public employee positions must undergo a probation period to become familiar with the working environment and practice the duties of the recruited job position, except for cases specified in Clause 1, Article 27 of the Law on Public Employees. During the probation period, the probationer receives 85% of the salary of the corresponding job position title.

According to the above regulation, in the case of Mr. Dang Van Tham, receiving 85% of the salary of the corresponding job position title during the 12-month probation period is conformable.

Regarding annual leave:

According to Clause 1, Article 13 of the 2010 Law on Public Employees of Vietnam, public employees are entitled to annual leave, public holidays, and personal leave as prescribed by labor law.

Clause 1, Article 111 of the Labor Code stipulates that an employee who has worked for an employer for 12 months is entitled to annual leave with full salary according to the labor contract as follows: 12 working days for those doing normal conditions jobs.

According to Clause 2, Article 6 of Decree No. 45/2013/ND-CP dated May 10, 2013, by the Government of Vietnam detailing some articles of the Labor Code on working hours, rest hours, occupational safety and health, the probation period according to the labor contract followed by working for the employer is considered as the working time to calculate annual leave days.

After completing the 12-month probation period, Mr. Dang Van Tham was signed to a 36-month fixed-term employment contract. According to Clause 2, Article 6 of Decree No. 45/2013/ND-CP, the probation period from September 1, 2014, to August 31, 2015, is considered as the working time to calculate annual leave days corresponding to 12 full-paid working days.

According to Clause 2, Article 114 of the Labor Code, employees with less than 12 months of work are entitled to annual leave in proportion to the working time.

Specifically, for Mr. Tham, the 12-month probation period (from September 1, 2014, to August 31, 2015) is considered as 12 months of work, equating to 12 full-paid annual leave days.

As for the 36-month fixed-term employment contract starting from September 1, 2015, by October 2015, he had completed 1 month, equivalent to 1 full-paid annual leave day.

If Mr. Tham takes leave in October 2015, he can use the 12 days from the probation period. If he wishes to combine it with the 1-day leave of October 2015 and receives approval from the head of the public service provider, he can take 13 days off at once.

According to the Government Electronic Information Portal

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