05 Judgments applying Case Law 20/2018/AL on establishing employment contract relations after the probationary period expires in Vietnam

Hello, The Lawnet would like to answer your questions as follows:

1. Contents of Precedent No. 20/2018/AL of Vietnam

“[2]Mr. Tran Cong T has worked at L Co., Ltd. according to the job invitation letter dated August 20, 2013 which indicates “Type of employment contract: Fixed term (12 months or longer). Probation period: 02 months”. At the end of the probation period (from September 09, 2013 to November 09, 2013), although Mr. T received no notice of result of his probation, he still continued doing his job. L Co., Ltd. thought that after 02-month probation period, Mr. T failed work requirements, so L Co., Ltd. decided to allow him to take an additional probation period of 01 month so as to facilitate him in fulfillment of his duties and have more time to make exact evaluation of his working capacity. However, there is no document proving the agreement on extension of the probation period made between Mr. T and L Co., Ltd.

[3] Clause 1 Article 27 of the Labour Code stipulates that "The probationary period of a holder of job title who is required to possess associate degree or higher shall not exceed 60 days”. According to the written statement dated June 14, 2014, representative of L Co., Ltd. stated: “L Co., Ltd. thoroughly knows that if the employment contract is not yet concluded after the probation period (60 days), the employee is entitled to work as an official employee under an employment contract of 12-month term". Thus, representative of L Co., Ltd. has admitted that after the probation period, Mr. T became an official employee working under an employment contract of 12-month term. Actually, L Co., Ltd. has negotiated with Mr. T about the termination of employment contract on December 28, 2013, and no agreement reached through such negotiation. On December 29, 2013, General Director of L Co., Ltd. has issued a Decision No. 15/QDKL-2013 on unilateral termination of employment contract with Mr. T. For these reasons, it is a well-founded affirmation that the relationship between Mr. T and L Co., Ltd. after the probation period is a contractual employment relationship."

2. Some judgments applying Precedent No. 20/2018/AL of Vietnam

Judgment on unilateral termination of labor contract No. 13/2020/LD-PT

- Level of trial: Appellate

- Judicial body: People's Court of Binh Duong province

- Quoted content: "In the fourth appeal, the defendant argued that the plaintiff was still in the probationary period and arbitrarily terminated the contract. Because, as analyzed in the second and third appeals and the reason given by the company to terminate the labor contract with the defendant, he did not meet the requirements of the company's leaders. The defendant said that the plaintiff, still in the probationary period, wanted to quit, so the company terminated the labor contract. This was not acknowledged by the plaintiff; the defendant also did not have any documents to prove it because of the plaintiff's voluntary will; and the witnesses confessed that they only heard the plaintiff say that the defendant let the plaintiff quit. The first-instance judgment based on Article 29 of the Labor Code, and Precedent No. 20/2018/AL of the Supreme People's Court that forced Kubota Kusui Vietnam Company to pay compensation to Mr. P.K.V. for compensation under Article 42 of the Labor Code is grounded."

Judgment on dispute claiming compensation for damage caused by unilateral termination of labor contract No. 03/2022/LD-PT

- Level of trial: Appellate

- Judicial body: Long An Province People's Court

- Quoted content: "Considering that, Company A cannot prove that on July 1, 2020, they assigned Mr. D a notice of the end of the probationary process, and at the same time, the Company still paid Mr. D's salary until the end of July 25, 2020. Therefore, the first instance level determined that the Company assigned Mr. D the notice of termination of the probationary process on July 24, 2020, was grounded. Thus, the probationary period ends on July 4, 2020. However, Mr. D was still working until July 25, 2020, when the company let him quit. Therefore, the first instance level determined that July 5, 2020 is the date of entering into a 12-month labor contract according to the provisions of Point b, Clause 1, Article 22, Clause 1, Article 29 of the Labor Code; and Precedent No. 20/2018/AL was approved by the Council of Judges of the Supreme People's Court on October 17, 2018 on the establishment of labor relations after the probationary period expired.

Judgment 14/2020/LD-ST dated September 30, 2020 on the dispute of unilateral termination of the labor contract

- Level of trial: First instance

- Judicial body: Go Vap District People's Court, Ho Chi Minh City

- Quoted content: "Mrs. Pham Thi Mai P has worked at TH Company since mid-April 2019 according to the job offer letter dated April 24, 2019. In the content of the invitation, Mr. T suggested to Mrs. P that after 3 months, when he has overcome the initial difficult period and has a business result, he will evaluate and review the salary and recommend a salary commensurate with Ms. P's capacity and the company's situation. After 03 months from the date of receiving the job, Ms. P continues to work at the Company and receives a full salary. Pursuant to Precedent No. 20/2018/AL approved by the Council of Judges of the Supreme People's Court on October 17, 2018, and published under Decision No. 269/QD-CA dated November 6, 2018 of the Supreme People's Court, Chief Justice of the Supreme People's Court, Ms. P has finished her 3-month working period, and Mrs. P continues to work; there is no other agreement between Ms. P and TH Company, the Trial Panel has grounds to determine that between TH Company and Ms. P has been established an employment contract relationship."

Judgment 886/2019/LD-PT dated October 9, 2019 on the dispute of unilateral termination of the labor contract

- Level of trial: Appellate

- Judicial body: Ho Chi Minh City People's Court

- Quoted content: "During the labor contract negotiation, in addition to the details that the company deliberately took him 30 km down to C. The company also stated in the contract draft that an employee of the department he managed, Mr. Nguyen Hong Giang, whom the company had asked him to discipline before, managed and operated his direct work, i.e., as department director instead of the chairman of the Board of Directors. After finishing the probationary period, he still worked normally at the address of District G for more than 01 month, which is the basis for establishing the working location of the official labor contract. Therefore, based on Articles 26, 27, 28, 29 of the Labor Code; and Precedent No. 20/2018/AL, which was approved by the Council of Judges of the Supreme People's Court on January 17, 2018 and published under Decision No. 269/QD-CA dated November 6, 2018 of the Chief Justice of the Supreme People's Court, requesting the Trial Panel to reject the defendant's appeal and accept the plaintiff's entire appeal, forcing the defendant to pay the plaintiff."

Judgment 01/2021/LD-PT dated January 28, 2021 on the dispute of unilateral termination of the labor contract

- Level of trial: Appellate

- Judicial body: People's Court of Ba Ria - Vung Tau province

- Quoted content: "Mr. B thinks that after signing a probationary contract twice, if he has not signed a labor contract, it must be determined that Mr. B is officially allowed to work under a definite-term contract of 12 months as the Precedent No. 20/2018/AL stipulating on the establishment of a labor contract after the probationary period expires, it is unfounded, because, as Mr. B confirms: After the probationary period expired, Mr. B received a notice of probation results on June 15, 2019, informing him that the content did not meet the job requirements and the probation results were unsatisfactory, so the company did not sign a labor contract with Mr. B. Compared with the relevant regulations in Decision No. 127/VIR dated July 25, 2013 on the establishment of departments and professional divisions of V International Tourism Joint Stock Company; and Notice No. 100/VIR dated July 5, 2015, the Head of the Reception Department signed the Certificate of probation results in accordance with the authority. Mr. B stated that he did not accept the notice of probation results, saying that Mr. Huynh Ngoc S, Head of the Front Desk Department of V International Tourism Joint Stock Company, did not have the authority to sign the Certificate of probation results, and the person authorized to sign the employment contract is groundless."

Best regards!

Please Login to be able to download