Hanoi-Vietnam: Regulations assisting employees to pass the probation

1. Probation contract is not required

Labor law stipulates that if the employer and the employee in Vietnam have agreed on probation, the two parties may conclude a probation contract. The content of the probation contract is regulated in Article 23 and Clause 1 of Article 26 of the Labor Code 2012. For employees working under a seasonal employment contract, probation is not required.

If the employer violates this regulation and requires probation for employees working under a seasonal employment contract, it will be fined a warning or face a fine from 500,000 VND to 1,000,000 VND as stipulated in Clause 1, Article 6 of Decree 95/2013/ND-CP; Clause 5, Article 1 of Decree 88/2015/ND-CP.

2. Probation is applied only once for each job

According to Article 27 of the Labor Code 2012, the probation period must be based on the nature and complexity of the job but probation is applied only once for each job and assure the following conditions:

- It does not exceed 60 days for posts which require professional and technical qualification of collegial or higher level.

- It does not exceed 30 days for posts which require professional and technical qualifications of intermediate vocational level, professional secondary level, or for technical workers and skilled employees.

- It does not exceed 6 working days for other types of jobs.

Violating the above regulation will result in a fine of 2,000,000 VND to 5,000,000 VND as stipulated in Clause 2, Article 6 of Decree 95/2013/ND-CP and Clause 5, Article 1 of Decree 88/2015/ND-CP.

3. Probation salary must be 85% of the official salary

Under Article 28 of the Labor Code 2012, the wage for an employee during the probation period must be agreed upon by the two parties but must be at least equal to 85% of the wage for the job. This law permits the employer and the employee to reach an agreement on payment of 100% salary during the probation period. However, if the employer pays a probation salary lower than 85% of the job’s salary, they will be fined 2,000,000 VND to 5,000,000 VND. This regulation is detailed in Point c, Clause 2, Article 6 of Decree 95/2013/ND-CP and Clause 5, Article 1 of Decree 88/2015/ND-CP.

4. Probation results must be notified to the employee

According to Article 7 of Decree 05/2015/ND-CP, within 3 days before the end of the probation period, the employer must inform the employee about the results of the probation work. If the probation work meets the requirements, the employer must conclude an employment contract with the employee immediately after the end of the probation period.

Failing to inform the employee about the probation results will result in a warning or a fine of 500,000 VND to 1,000,000 VND according to Article 6 of Decree 95/2013/ND-CP and Clause 5, Article 1 of Decree 88/2015/ND-CP.

5. Official contract must be concluded immediately after probation

When the probation period ends, the employer must review whether the employee has met the requirements. If the employee meets the requirements, the employer must conclude an employment contract with the employee. If the probation period ends and the employee continues to work without the employer notifying the results or concluding an official contract, the probation contract automatically becomes an official employment contract, and the employee will receive full salary.

Additionally, the employer may be fined from 2,000,000 VND to 5,000,000 VND according to Clause 5, Article 1 of Decree 88/2015/ND-CP if they fail to conclude an employment contract with the employee at the end of the probation period while the employee continues to work.

6. Employees on probation can resign without notice

According to Article 29 of the Labor Code 2012, during the probation period, either party has the right to cancel the probation agreement without prior notice and without compensation if the probation work does not meet the agreed requirements.

Thus, employees have the right to unilaterally terminate the probation contract without notice and without compensation. In this case, the employee still receives the salary for the days worked. The employer is responsible for paying and settling the salary for the employee even if it is just a probation contract.

7. Social insurance premiums for employees on probation must be paid.

According to Article 4 of Decision 595/QD-BHXH; Article 27 of the Labor Code 2012, the probation period under a probation contract is not subject to social insurance participation.

However, according to Clause 3, Article 186 of the Labor Code 2012, although the employee on probation is not required to participate in social insurance, the employer must pay an additional amount along with the salary payment equivalent to the social insurance contribution rate that the employer is responsible for beside the job’s salary.

8. Severance allowance and job loss allowance during probation

According to Point a, Clause 3 of Decree 05/2015/ND-CP, the probation period is also counted as the actual working time of the employee at the enterprise for calculating severance allowance or job loss allowance as stipulated in Article 48 and Article 49 of the Labor Code 2012.

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