Is probationary period counted as severance allowance in Vietnam?

Is probationary period counted as severance allowance in Vietnam?

If an employee has a 2-month probationary period and has worked for the company for 12 months or more, will he or she receive severance allowance for the 2-month probationary period when resigning? The company pays full social insurance and unemployment insurance. If so, how is it calculated? Please advise. Thank you.

Reply:

According to Article 46 of the 2019 Labor Code, regulations on severance allowance are as follows:

1. In case an employment contract is terminated as prescribed in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of this Code, the employer is responsible for paying severance allowance to the employee who has worked on a regular basis for a period of at least 12 months. Each year of work will be worth half a month’s salary, except for the cases in which the employee is entitled to receive retirement pension as prescribed by social insurance laws, and the cases specified in Point e Clause 1 Article 36 of this Labor Code.

2. The qualified period of work as the basis for calculation of severance allowance shall be the total period during which the employee actually worked for the employer minus the period over which the employee participated in the unemployment insurance in accordance with unemployment insurance laws and the period for which severance allowance or redundancy allowance has been paid by the employer.

3. The salary as the basis for calculation of severance allowance shall be the average salary of the last 06 months under the employment contract before the termination.

4. The Government shall elaborate this Article.

According to Point a, Clause 3, Article 8 of Decree 145/2020/ND-CP, severance allowance, redundancy allowance:

3. The employment period as the basis for calculation of severance allowance or redundancy allowance is the total period over which the employee has worked for the employer in reality (hereinafter referred to as “actual work period”) minus (-) the period over which the employee participates in unemployment insurance and the period over which the employer pays severance allowance or redundancy allowance. Where:

a) The actual work period includes: actual work period; probation period; employer-provided training period; sick leave and maternal leave according to social insurance laws; paid recovery period after an occupational accident or disease according to occupational hygiene and safety laws; paid leave period for fulfillment of citizen’s duties; work suspension period through no fault of the employee; weekly breaks prescribed in Article 111, paid leave prescribed in Article 112, Article 113, Article 114, Clause 1 Article 115; period over which the employee has to perform duties of the employee representative organization prescribed in Clause 2 and Clause 3 Article 176; and work suspension period prescribed in Article 128 of the Labor Code.

Therefore, when resigning the job, the 2-month probationary period will also be counted to enjoy severance allowance minus the time spent participating in unemployment insurance in Vietnam.

From there, it can be calculated as follows:

Time to calculate severance allowance = 02 months of probation (calculated as 1/2 year).

Severance allowance level = 1/2 x Salary to calculate severance allowance x 1/2 year.

You base on the above regulations to apply to specific cases in your unit.

Is probationary period counted as severance allowance in Vietnam? (Image from the Internet)

Is it legal to have 7 days of probationary period in Vietnam?

I just changed companies, I went to another company to work in the same professional field I used to work in the previous company. The new company asked me to try for 7 days because I had experience. If I didn't meet their requirements, it was over. Is it legal to have 7 days of probationary period in Vietnam? I have a question here, please help me.

Reply:

Article 25 of the 2019 Labor Code has regulations on probationary periods 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.

Here, depending on the nature and complexity of the job, the probationary period agreed upon by the parties must ensure the above regulations in Vietnam. And here we only limit the maximum probationary period, no minimum probationary period is specified.

Therefore, as long as the probationary period as prescribed above is not exceeded in Vietnam, you can completely agree on a probationary period of any length, even if it is only a 1-day trial.

If your job is not subject to a probationary period of no more than 06 days, then your 7-day probationary period is completely reasonable in Vietnam.

How long in advance do I have to give notice if I don't want to continue on probation in Vietnam?

May I ask you. According to regulations, in case an employee who is on probation does not want to continue on probation, how long in advance must he or she notify the company or business?

Reply:

In Article 27 of the 2019 Labor Code, there are regulations on 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, according to the above regulations in Vietnam, during the probationary period, the employee (probationer) has right to end the probationary period without prior notice to the company or business.

Best regards!