Can a public service provider in Vietnam unilaterally terminate the working contract with a public employee who does pass probation?
How long is the probationary period for a public employee before appointment to a professional title in Vietnam?
According to Article 24 of Decree 115/2020/ND-CP concerning the appointment to a professional title of public employees for a probationer after the probationary period is as follows:
Appointment to a professional title of public employees for a probationer after the probationary period
1. When the probationary period ends, the probationer must submit a written report on the results of the probation in accordance with the contents stipulated in Clause 3, Article 21 of this Decree; the probationary instructor is responsible for assessing and evaluating the results of the probation in writing. These documents are submitted to the head of the public service provider.
2. No later than 5 working days from the date of receiving the probationary report and the evaluation from the probationary instructor, the head of the public service provider shall assess the political qualities, ethics, and work results of the probationer. If the probationer meets the requirements, the head of the public service provider shall decide within their authority or send a written request to the competent authority managing the public service provider to decide on the appointment to the professional title and arrange the salary for the recruited public employee.
A public employee, at the end of the probationary period, shall be appointed to a professional title within a maximum of 5 working days from the date of receiving the probationary report and the evaluation from the probationary instructor.
The head of the public service provider shall assess the political qualities, ethics, and work results of the probationer.
If the probationer meets the requirements, the head of the public service provider shall decide within their authority or send a written request to the competent authority to decide on the appointment to the professional title and arrange the salary for the employed public employee.
Can a public service provider in Vietnam unilaterally terminate the working contract with a public employee who does pass probation?
Can a public service provider in Vietnam unilaterally terminate the working contract with a public employee who does pass probation?
Under Article 29 of the Law on Public Employees 2010 supplemented by Clause 4, Article 2 of the Law on Amendments to the Law on Offcials and the Law on Public Employees 2019, and several phrases replaced by Point b, Clause 12, Article 2 of the Law on Amendments to the Law on Offcials and the Law on Public Employees 2019, the provisions for unilateral termination of working contracts are specifically as follows:
Unilateral termination of working contract
1. Public service providers are allowed to unilaterally terminate working contracts with public employees in the following cases:
a) The public employee is rated as failing to complete tasks for two consecutive years;
b) The public employee is dismissed according to the provisions of Point d, Clause 1, Article 52 and Clause 1, Article 57 of this Law;
c) The public employee under an indefinite-term working contract who has been ill for 12 consecutive months, or the public employee under a fixed-term working contract who has been ill for 6 consecutive months without recovery in work capacity. When the public employee's health recovers, they shall be considered for re-entering working contracts;
d) Due to natural disasters, fires, or other force majeure reasons prescribed by the Government of Vietnam causing the public service provider to downsize, making the position held by the public employee redundant;
đ) When the public service provider ceases operation as decided by the competent authority;
e) The public employee does not meet the requirements after the probationary period.
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Thus, according to the above regulation, a public service provider in Vietnam may unilaterally terminate the working contract with a public employee who does not meet the requirements after the probationary period.
Is the probationary period included in the period required for salary step upgrade consideration in Vietnam?
According to Article 23 of Decree 115/2020/ND-CP which stipulates the policies for probationer and their instructors:
Regimes and policies for probationers and their instructors
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2. A probationer shall receive 100% of the salary and allowances of the professional title corresponding to the training qualifications stipulated in Clause 1 of this Article in the following cases:
a) Working in areas with extremely difficult socio-economic conditions;
b) Working in hazardous and dangerous industries and professions;
c) Completing military service; participating in the People's Police; military officers, police officers, professional soldiers returning to civilian life, cryptographic personnel changing sectors, graduates trained as reserve officers, graduates trained as commune-level military command officers awarded reserve officer rank registered in the reserve officer category, young volunteer members, young intellectual volunteers participating in rural and mountainous development for at least 24 months who have completed their tasks.
3. The probationary period of a public employee is not included in the period required for salary step upgrade consideration.
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Thus, in this case, the probationary period of a public employee is not included in the period required for salary step upgrade consideration in Vietnam according to the provisions of the law.
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