Vietnam: What is the administrative penalty imposed upon the employer for paying probationary salary at the rate lower than the minimum salary?
What is the minimum salary that the probationer can receive?
According to Article 26 of the 2019 Labor Code of Vietnam on the probationary salary as follows:
Probationary salary
The probationary salary shall be negotiated by both parties and shall not be lower than 85% of the offered salary.
Thus, according to regulations, the employee's salary during the probationary period shall be agreed upon by the two parties, and shall not be lower than 85% of the offered salary. Employers must not pay less than the prescribed minimum salary for probationers.
Vietnam: What is the administrative penalty imposed upon the employer for paying probationary salary at the rate lower than the minimum salary? (Image from the Internet)
What is the administrative penalty imposed upon the employer for paying probationary salary at the rate lower than the minimum salary?
Pursuant to the provisions of Article 10 of Decree No. 12/2022/ND-CP on penalties for violations against regulations on probation, specifically as follows:
Violations against regulations on probation
1. A fine ranging from VND 500.000 to VND 1.000.000 shall be imposed upon an employer for commission of one of the following violations:
a) Requesting employees who work under employment contracts with a term of less than 01 month to undergo probation;
b) Failing to inform employees of their probation results as prescribed.
2. A fine ranging from VND 2.000.000 to VND 5.000.000 shall be imposed upon an employer for commission of one of the following violations:
a) Requesting an employee to undergo more than 01 probationary period for a job;
b) Having employees take probation for a period longer than prescribed;
c) Paying probationary salary at the rate lower than 85% of the offered salary;
d) Failing to conclude the employment contract with the employee whose probation result is satisfactory in case a probation contract has been concluded.
3. Remedial measures
a) The employer that commits the violation specified in Point a Clause 1 or Point a, b or c Clause 2 of this Article is compelled to pay full salary to affected employees;
b) The employer that commits the violation specified in Point d Clause 2 of this Article is compelled to conclude employment contracts with affected employees.
Thus, according to the above provisions, if the employer pays probationary salary at the rate lower than 85% of the offered salary, he/she may be fined up to VND 5.000.000. In addition to being sanctioned for administrative violations, the employer is compelled to pay full salary to affected employees.
The above fines are imposed on individuals; the fines incurred by an organization are twice as much as that incurred by an individual for the same administrative violation.
Does the employee have the right to unilaterally terminate the probation contract?
According to the provisions of Article 25 of the 2019 Labor Code of Vietnam on the probationary period as follows:
Probationary period in Vietnam
The probationary period shall be negotiated by the parties on the basis of the nature and complexity of the job. Only one probationary period is allowed for a job and the probation shall not exceed:
1. 180 days for the position of enterprise executive prescribed by the Law on Enterprises, the Law on management and use of state investment in enterprises;
2. 60 days for positions that require a junior college degree or above;
3. 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;
4. 06 working days for other jobs.
At the same time, according to Article 27 of the 2019 Labor Code of Vietnam on the termination of probationary period as follows:
Termination of probationary period in Vietnam
1. Upon the expiry of the probationary period, the employer shall inform the employee of the probation result.
If the result is satisfactory, the employer shall keep implementing the concluded employment contract, if there is one, or conclude the employment contract.
If the result is not satisfactory, the employer may terminate the concluded employment contract or the probation contract.
2. During the probationary period, either party has the right to terminate the concluded probation contract or employment contract without prior notice and compensation obligation.
Thus, according to regulations, during the probationary period, either party has the right to terminate the concluded probation contract or employment contract without prior notice and compensation obligation. Therefore, the employee has the right to unilaterally terminate the probation contract.
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