Can an employee be requested to undergo 02 probationary period for a job in Vietnam?
Can an employee be requested to undergo 02 probationary period for a job in Vietnam? How much is penalty for requesting an employee to undergo 02 probationary period for a job in Vietnam?
Hello, I have this problem answered. I am a probation employee at M Company Limited from June 22 to August 21 (2 months). The probationary contract clearly states that after the above period of time, if the probationary requirements are met, an official contract will be signed; if not, the probationary contract will be terminated. Up to now, on August 25, the company's personnel responded to me that I had to try the job again (ie 2 more months) because I did not meet the requirements. Can I ask if the company can ask me to undergo 02 probationary period for a job? Looking forward to your answer, thank you.
Can an employee be requested to undergo 02 probationary period for a job in Vietnam?
Article 25 of the 2019 Labor Code stipulates the probationary period as follows:
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.
According to Article 27 of the 2019 Labor Code, termination of probationary period as follows:
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, if the company asks you to undergo 02 probationary period for a job, the company violates the law in Vietnam:
First, in your probationary contract, it is clearly stated that the probationary period is from June 22 to August 21. This is a job that only requires professional and technical qualifications from college or higher. The company requires you to try for another 2 months, which exceeds the number of days prescribed by law for jobs that only require the qualifications mentioned above.
Second, according to the law, if the probationary period fails, the probationary contract will be terminated, but the employee cannot be asked to try again for reasons of unsatisfactory performance.
Can an employee be requested to undergo 02 probationary period for a job in Vietnam? (Image from the Internet)
How much is penalty for requesting an employee to undergo 02 probationary period for a job in Vietnam?
Pursuant to Article 10 of Decree 12/2022/ND-CP regulating violations against regulations on probation as follows:
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.
According to Clause 1, Article 6, Decree 12/2022/ND-CP stipulates the fine level:
1. The fines for administrative violations prescribed in Chapter II, Chapter III and Chapter IV of this Decree shall be imposed upon violating individuals, except the fines in Clauses 1, 2, 3, 5 Article 7, Clauses 3, 4, 6 Article 13, Clause 2 Article 25, Clause 1 Article 26, Clauses 1, 5, 6, 7 Article 27, Clause 8 Article 39, Clause 5 Article 41, Clauses 1 through 12 Article 42, Clauses 1 through 8 Article 43, Clauses 1 through 6 Article 45, Clause 3 Article 46 of this Decree. The fine imposed upon an organization is twice as much as that imposed upon an individual for committing the same administrative violation.
Therefore, if the company asks you to undergo 02 probationary period, the company will be fined from 4,000,000 VND to 10,000,000 VND. In addition, the company must pay you the full salary for the job you are undertaking in Vietnam.
Best regards!
