Probation is the period during which the employer both trains and evaluates the capabilities of the employee before formally signing an employment contract. Therefore, are employers in Vietnam required to receive employees completing the probationary period?
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Vietnam: Are employees required to receive employees completing the probationary period? (Illustration image)
According to the provisions of Article 26 of the Labor Code 2012, an employer and an employee in Vietnam may reach agreement on the probation and the rights and obligations of the two parties during the probationary period. If reaching agreement on the probation, the two parties may enter into a probation contract.
1. Regarding the probationary period
According to the provisions of the Labor Code 2012, the probationary 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.
2. Wage during the probationary period in Vietnam
The wage for an employee during the probationary period must be agreed upon by the two parties but must be at least equal to 85% of the wage for the job.
3. Expiry of the probationary period in Vietnam
- If the probational job is satisfactory, the employer shall sign an employment contract with the employee.
- During the probationary period, each party may cancel the probation agreement without prior notice and compensation if the probational job fails to meet the requirements that have been agreed by the two parties.
Regarding probationary regulations, the Labor Code 2019 generally introduces certain changes compared to the Labor Code 2012. 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 Labor Code 2012 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 Labor Code 2012.
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 Labor Code 2019 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 employment 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 employment 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, and to decide whether they can commit long-term to the company before deciding to enter into a employment 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
