If a probationary employee does not meet the requirements or resigns, is the employer entitled to a refund of social insurance contributions in Vietnam?
If a probationary employee does not meet the requirements or resigns, is the employer entitled to a refund of social insurance contributions in Vietnam?
Based on Clause 3, Article 85 of the Law on Social Insurance 2014, it is stipulated as follows:
Rate and method of payment for employees participating in compulsory social insurance
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3. Employees who do not work and do not receive wages for 14 or more working days in a month are not required to pay social insurance for that month. This period is not counted for enjoying social insurance, except in cases of taking leave to enjoy maternity policies.
According to the above regulation, the employer will base on the condition that the employee does not work and does not receive wages for 14 or more working days in a month, except in cases of taking leave to enjoy maternity policies, to determine social insurance contributions.
At the same time, if the employer has already paid compulsory social insurance for probationary employees, it should refer to Point 3.1, Clause 3, Article 43 of the procedures issued together with Decision 595/QD-BHXH in 2017 (revised by Clause 67, Article 1 of Decision 505/QD-BHXH in 2020), which stipulates as follows:
Management of payment collection
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3. Refunds
3.1. Cases of refunds
a) The unit dissolves, goes bankrupt, ceases operations according to legal provisions, or relocates the place of registration, resulting in excess payment of social insurance, health insurance, unemployment insurance, occupational accident, and disease insurance.
b) Cases of refunds for voluntary social insurance and health insurance.
c) The unit transfers money into the collection account that is not under the management responsibility of the provincial or district social insurance agency according to administrative division.
d) Amounts the unit or individual has transferred to the collection account that are not payments for social insurance, health insurance, unemployment insurance, occupational accident, and disease insurance.
dd) The treasury or bank mistakenly accounts the amount into the collection account.
e) In case one person has two or more social insurance books with overlapping periods of social insurance, unemployment insurance contributions, the social insurance agency refunds the amount paid by the unit and the employee into the pension and survivor fund and unemployment insurance fund (including the amount that the employer is responsible for paying), excluding interest. The social insurance agency of the locality where the employee is working or residing shall refund to the employee as stipulated in Clause 2, Article 46.
g) In case of paying social insurance for employees who are not subject to compulsory social insurance.
According to the above, the employer can file for a refund of social insurance contributions if it has paid social insurance for probationary employees who either did not meet the requirements or voluntarily resigned.
If a probationary employee does not meet the requirements or resigns, is the employer entitled to a refund of social insurance contributions in Vietnam?
Vietnam: If the probationary period is included in the employment contract, is the employer required to pay compulsory social insurance for employees?
Based on the provisions of Article 24 of the Labor Code 2019, it is stipulated as follows:
Probation
1. The employer and the employee may agree on the probation content that is recorded in the employment contract or agree on probation by entering into a probation contract.
2. The main content of the probation contract includes the probation period and the contents stipulated in points a, b, c, đ, g, and h of Clause 1, Article 21 of this Code.
3. Probation does not apply to employees entering into employment contracts with a duration of less than 01 month.
According to the above regulation, the employer and the employee may agree on the probation content recorded in the employment contract.
Note: probation does not apply to employees entering into employment contracts with durations of less than 01 month.
At the same time, based on the provisions of Clause 1, Article 2 of the Law on Social Insurance 2014, it is stipulated as follows:
Applicable entities
1. Employees who are Vietnamese citizens subject to compulsory social insurance participation include:
a) Employees working under indefinite-term employment contracts, definite-term employment contracts, seasonal employment contracts, or employment contracts for a specific job with a term of full 03 months to less than 12 months, including employment contracts signed between the employer and the legal representative of persons under 15 years old as stipulated in labor laws;
b) Employees working under employment contracts with terms ranging from full 01 month to less than 03 months;
According to the above regulation, employees working under indefinite-term employment contracts, definite-term employment contracts, seasonal employment contracts, or employment contracts for a specific job with a term from full 01 month or more are subject to compulsory social insurance participation.
Employees working under probation contracts are not subject to compulsory social insurance participation.
However, if the probation period is recorded in the employment contract, and that contract falls under the category required to participate in compulsory social insurance, then the employer and employee must pay compulsory social insurance for the entire probation period.
Is the employer obliged to pay social insurance for the employees in Vietnam?
Based on the provisions of Clause 2, Article 6 of the Labor Code 2019, it is stipulated as follows:
Rights and obligations of the employer
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2. The employer has the following obligations:
a) To perform the employment contract, collective labor agreement, and other legal agreements; respect the honor and dignity of the employee;
b) To establish mechanisms and conduct dialogues, exchanges with employees and labor representative organizations; implement democratic regulations at the workplace;
c) To train, retrain, and improve the professional skills of employees to maintain, transfer careers, and employment for employees;
d) To comply with the provisions of law on labor, employment, vocational education, social insurance, health insurance, unemployment insurance, and labor safety and hygiene; to develop and implement sexual harassment prevention measures at the workplace;
dd) To participate in developing national occupational skills standards, evaluate, and recognize occupational skills for employees.
According to the above regulation, the employer is obliged to implement social insurance.
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