People when on probation time for a job at a company may not continue working and plan to resign due to many reasons but do not know if they violate the law or not if they quit. Besides, many wonder if they can get a salary for the work done before quitting. So, in this article, LSX legal firm would like to answer the question: “Do you get paid if you quit during probation in Vietnam?”
Legal ground
- Labor Code 2019
Probationary period and probationary salary
The law stipulates the probationary period as follows:
The parties shall negotiate the probationary period 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:
- Firstly, 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.
- Secondly, 60 days for positions that require a junior college degree or above.
- Thirdly, 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees.
- Fourthly, 06 working days for other jobs.
Besides, 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.
Can you quit during the probationary period?
Article 27 of the Labor Code of 2019 about termination of probationary period:
- Upon the expiry of the probationary period, the employer shall inform the employee of the probation result.
- If the result satisfies, the employer shall keep implementing the concluded employment contract (if any), or conclude the employment contract.
- If the result does not satisfy, the employer may terminate the concluded employment contract or the probation contract.
- During the probationary period, either party has the right to terminate the concluded probation contract or employment contract without prior notice and compensation obligation.
So, during the probationary period, the employee has the right to cancel the probationary contract or the signed labor contract without prior notice.
The Labor Code 2019 inherits this content from Clause 2, Article 29 of the Labor Code 2012. Thus, from January 1, 2021, employees who take leave during the probationary period will not need to notify the employee in advance.
At the same time, the employer also has the right to unilaterally terminate the contract with the employee without prior notice during the probationary period.
In accordance with the provisions of the Labor Code 2019, an employee who takes leave during the probationary period will not have to compensate the employer. Meanwhile, according to the provisions of the Labor Code 2012, the employee only has to pay no compensation if the trial work fails to meet the requirements as agreed by the two parties.
In fact, probationary workers should notify the unit where they work in advance to facilitate the company’s organization of personnel to find a replacement for their position to avoid affecting the operation of the unit.
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.
Do you need to write an application for leave during the probationary period?
The current Labor Code does not have regulations on writing resignation letters in general and resignation applications during the probationary period in particular. However, the regulations of some companies have specific provisions on writing a resignation application, thereby serving as a basis for terminating the labor relationship in general and the probationary relationship in particular with the employee to settle the rights of employees and limit disputes. Then, to explicitly terminate the probationary period, the employee should write a resignation letter to the unit where they work.
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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- Minutes of Board of Members meeting on business suspension in Vietnam
- Procedures for business suspension of single-member LLC in Vietnam
Related questions
An employment contract takes effect as of the date on which the contract is concluded by the parties, unless otherwise agreed by both parties or prescribed by law.
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.
The unilateral termination of an employment contract will be illegal if it does not comply with regulations of Article 35, 36 and 37 of the Labor Code.
Contact LSX
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