Judgment 1121/2018/LD-PT dated November 27 , 2018 on the dispute over unilateral termination of the labor contract of the Ho Chi Minh People's Court.
Ms. H is the chief accountant for company T, date of employment: March 28, 2016, probationary period: 02 months with a salary of 30 million dong.
After the probationary period ended, she continued to work for the Company, but on June 1, 2016, the company's director suddenly asked her to hand over the job and let her quit. She continued to work, but the Director of the Company did not allow her to work. On June 4, 2016, the Company sent a notice of resignation.
Ms. H requested the Company to accept her back to work due to unilaterally terminating the contract illegally, signing a labor contract with her in accordance with the law and at the same time paying compensation according to the law up to 210,000,000 VND".
Through the first instance and appellate court hearings, the Court declared: T Company Limited must pay Ms. Pham Thi Ngoc H VND 180,000,000.
The Court has based on Articles 27 and 29 of the Labor Code and Article 7 of Decree No. 05/2015/ND-CP dated January 12, 2015
Article 27. Termination of probationary period
The probationary period is based on the nature and complexity of the job, but only one trial period for a job and the following conditions are satisfied:
1. No more than 60 days for jobs with professional titles requiring professional or technical qualifications from college or higher;
Article 29. End of probation period
1. When the probationary job is satisfactory, the employer must enter into a labor contract with the employee.
2. During the probationary period, each party has the right to cancel the probationary agreement without prior notice and without compensation if the probationary work fails to meet the requirements agreed upon by the two parties.
Article 7. Notification of test results
1. Within 03 days before the end of the probationary period for employees doing the jobs with the probationary period specified in Clauses 1 and 2, Article 27 of the Labor Code, the employer must notify notify employees of the results of work they have tried; If the probationary job is satisfactory, at the end of the probationary period, the employer must immediately conclude a labor contract with the employee.
Firstly, Ms. H has been working since March 28, 2016, then on May 28, 2016 she will have full 02 months of probation. After this period, she continued to work until June 1, 2016 when she received a notice of resignation. Therefore, the day Ms. H received the notice of resignation, the 60-day probationary period has passed. After the probationary period ended, Ms. H continued to work at the Company for 5 days, so the Company had to immediately conclude a labor contract with the employee.
Secondly, because there is no agreement between the two parties on the type of contract to be signed after the probationary period ends, considering the job that Ms. H is assigned to be the Head of the Finance and Accounting Department, this job needs to be of professional and practical nature. The job is regular and continuous, so based on Article 22 of the Labor Code, it is necessary to determine the type of labor contract in this case, which is a 12-month definite-term labor contract, from May 28, 2016, ending on May 28. May 2017.
From here, employees and employers need to pay attention to a number of issues related to the member's contract as follows:
During the probationary period, each party has the right to cancel the probationary agreement without prior notice and without compensation.
However, when the probationary period is over:
+ On the part of employees, they should actively inquire about probation results so that they can sign an official contract as soon as the membership contract expires or be prepared to find a new job.
+ The employer should notify the probation result to the employee within the prescribed time limit at the end of the probationary period. Within 03 days before the end of the probationary period with the employee specified in Clause 1, Clause 2, Article 27 of the Labor Code (the probationary period is not more than 30 days or not more than 60 days), when the probationary period ends, probationary period with employees specified in Clause 3, Article 27 of the Labor Code (with a probationary period of no more than 06 days). Meanwhile, it is also necessary to pay attention to ensuring that the employee has received the notice, in order to avoid the situation where the employee thinks that he has not received any notice, so he continues to work.
It can be seen that, at present, the law does not have specific provisions on the fact that after the expiration of the probationary contract, the employee who continues to work will automatically switch to a labor contract, but it is clear that Employers must notify the probation results after the probationary period expires with the employees to know if the two parties have entered into a labor contract.
This notification is very important because in case the employer does not want the employee to become a full-time employee, it is necessary to notify the employee about the unsuccessful probation process, and if not, or notify late after the prescribed time limit. and then not accepting the employee to work, it may lead to the case of compensation as in the above judgment.