Probation is the period during which the employer both trains and evaluates the capabilities of the employee before formally signing a labor contract. Therefore, after the probationary period ends, is it mandatory to hire the employee for work?
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End of probation period, is it mandatory to accept the employee for regular work? (Illustration image)
According to the provisions of Article 26 of the 2012 Labor Code, the employer and the employee can agree on probationary work and the rights and obligations of both parties during the probationary period. If there is an agreement on probationary work, both parties may enter into a probationary contract.
1. Regarding the probationary period
According to the provisions of the 2012 Labor Code, the probationary period is based on the nature and complexity of the job but is limited to being done only once for a job and must ensure the following conditions:
- No more than 60 days for jobs requiring professional or technical qualifications from a college degree or higher;- No more than 30 days for jobs requiring intermediate vocational, intermediate professional qualifications, technical workers, or clerical employees;- No more than 6 working days for other jobs.
2. Salary during the probationary period
The salary for the employee during the probationary period is mutually agreed upon but must be at least 85% of the official salary for that job.
3. End of the probationary period
- When the probationary work meets the requirements, the employer must sign a labor contract with the employee.- During the probationary period, each party has the right to terminate the probation agreement without prior notice and without compensation if the probationary work does not meet the agreed-upon requirements.
Regarding probationary regulations, the 2019 Labor Code generally introduces certain changes compared to the 2012 Labor Code. For example, it adds regulations on the probationary period for managerial positions at enterprises according to the Law on Enterprises and the Law on Management and Use of State Capital Invested in Business at Enterprises, which should not exceed 180 days (the 2012 Labor Code does not specify the probationary period for this category). However, the provisions regarding the end of the probationary period have not changed significantly compared to the 2012 Labor Code.
To be specific, if the probation meets the requirements, the employer must hire the employee. During the probationary period, each party has the right to terminate the probation without prior notice and without compensation. Furthermore, the 2019 Labor Code stipulates that at the end of the probationary period, the employer must inform the employee of the probation results. If the probation does not meet the requirements, the labor contract or probationary contract is terminated.
Thus, it can be seen that the regulations regarding the probationary period are intended to allow the employer to "test the waters" with the employee and also for the employee to "experience" the work and working environment. The purpose is to provide both the employee and the employer a basis to accurately decide whether to enter into a labor contract. Therefore, the law does not "force" the employer to accept the employee after the probationary period but rather evaluates the employee based on actual capacity.
On the other hand, the probationary period also allows the employee to get familiar with the job and environment, to decide whether they can commit long-term to the company before deciding to enter into a labor contract. However, a practical drawback when applying this regulation is that the decision on whether the probationary period meets the requirements lies with the employer, which can lead to a lack of objectivity in probation results, causing potential disadvantage to the employee.
Thuy Tram
