In order for businesses to have time to verify the working ability of labor candidates when signing contracts, employees need to go through a period called internship (probation). Depending on the nature and scope of employment, the probation period can range from 6 days to 6 months. In this article, LSX legal firm will help you to answer the question: “how many time can employee do probation in Vietnam?”
Legal grounds
- Labor Code 2019
- Civil Code 2015
Regulation on labor contract in Vietnam
Clause 1, Article 13 of the Labor Code 2019 stipulates the labor contract as follows:
- An employment contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations.
- A document with a different name is also considered an employment contract if it contains the agreement on the paid job, salary, management, and supervision of a party.
On the other hand:
- “Employee” means a person who works for an employee under an agreement, paid, managed, and supervised by the employer.
- “Employer” means an enterprise, agency, organization, cooperative, household, or individual who employs other people under agreements. An employee as an individual shall have full legal capacity.
- The labor contract will take effect from the date of signing by the two parties unless otherwise agreed by the two parties or provided for by law.
Types of labor contracts under the current Labor Code:
- An indefinite-term employment contract means a contract in which the two parties neither fix the term nor the time of termination of the contract;
- A fixed-term employment contract means a contract in which the two parties fix the term of the contract for a duration of up to 36 months from the date of its conclusion.
Forms of employment contract
An employment contract shall be concluded in writing and made into two copies, one of which will be kept by the employee, the other by the employer, except for the case specified below.
An employment contract in the form of electronic data conformable with electronic transaction laws shall have the same value as that of a physical contract.
Both parties may conclude an oral contract with a term of less than 01 month, except for the cases specified in Clause 2 Article 18, Point a Clause 1 Article 145, and Clause 1 Article 162 of the Labor Code.
Regulations on probation in Vietnam
- An employer and an employee may include the contents of the probation in the employment contract or enter into a separate probation contract.
- Probation is not allowed if the employee works under an employment contract with a duration of less than 01 month.
- The probation contract must include the probation period and the following contents:
- The employer’s name, address; full name, and position of the person who concludes the contract on the employer’s side;
- Full name, date of birth, gender, residence, identity card number, or passport number of the person who concludes the contract on the employee’s side;
- The job and workplace;
- Job- or position-based salary, the form of salary payment, the due date for payment of salary, allowances, and other additional payments;
- Working hours, rest periods;
- Personal protective equipment for the employee;
How many time can employee do probation?
Article 25 of the Labor Code 2019 provides for 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:
- 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;
- 60 days for positions that require a junior college degree or above;
- 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;
- 06 working days for other jobs.”
Thus, through the above regulations, we can see that the current labor law does not stipulate how many times an employee is allowed to try a job, but only stipulates the time of probationary period. After the probationary period, the employee does not have to apply for another probation. So, it can be deduced that each time an employee signs a contract, he or she is allowed to try a job once.
Do you receive salary if you quit during probation?
As mentioned above, both parties shall negotiate the salary during the probationary period and not lower than 85% of the offered salary. Regarding the principle of salary payment, according to Clause 1, Article 94 of the Labor Code, the employer must pay the employee directly, fully, and on time. In case the employee cannot receive the salary directly, the employer may pay the salary to the person legally authorized by the employee.
Therefore, the employer needs to base on the regulations on salary payment in the agreement on the probation to pay the full salary according to the level corresponding to the time worked at the enterprise or unit.
Some employers use the excuse that employees leave early, work for a few days, and do not guarantee the number of days according to the probation agreement so not pay probationary wages to employees. This act violates the Labor Code because, as we have shared above: During the probationary period, each party has the right to cancel the signed probationary contract or labor contract without prior notice and without compensation. The Labor Code allows each party, including the employee and the employer, to cancel the signed probationary contract. The employees’ early quit during the probationary period means an exercise of the right, not a violation, thereby they have the right to receive a salary.
Legal service of LSX Legal Firm
LSX legal firm provides legal services to clients in various legal areas. To make your case convenient, LSX will perform:
- Legal advice related to new regulations;
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Contact LSX
Finally, hope this article is useful for you to answer the question about “How many time can employee do probation in Vietnam?”. If you need any further information, please contact LSX Law firm: +84846175333 or Email: [email protected]
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Related questions
The law stipulates the salary during the probationary period as follows:
Negotiated by both parties and shall not lower than 85% of the offered salary.
The current Labor Code does not have regulations on writing resignation letters in general and resignation applications during the probationary period in particular. However, to explicitly terminate the probationary period, the employee should write a resignation letter to the unit where they work.
The works under an employment contract shall be performed by the employee who directly enters into the contract. The workplace shall be consistent with that indicated in the employment contract, unless otherwise agreed upon by both parties.
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