INSIGHTS

Q&A on Labor Law: Probationary period

March 14, 2019 Labor & Employment

QUESTION:

The company is currently applying the following probationary provisions:

1.For room cleaning staff: 30 days of probation. The company only bases recruiting on the complexity of the job and not on the qualification of the staff. So, some staff who have not yet graduated from high school are still recruited.

2.For other positions (receptionists, room supervisors, etc.): 60 days of probation. Some staff who only graduated from high school or intermediate vocational school are still recruited.

Is the company is applying the regulation of probationary period prescribed in Article 27 of the 2012 Labor Code properly?

“Article 27. Probationary period

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:

1.It does not exceed 60 days for jobs which require professional and technical qualification of collegial or higher level;

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

3.It does not exceed 06 working days for other types of jobs.”

ANSWER

Pursuant to Article 27 of the 2012 Labor Code, the probationary period is based on the nature and complexity of the job, regardless of the qualifications that employees have.  The “nature and complexity of the job” is determined depending on (i) the job description and requirements set by a company in its job recruitment announcement and (ii) the practical recruitment of such company.  The company usually uses the candidate’s qualifications as the grounds for proving that such candidate meets the recruitment requirements.  For example:

_If the company looks for a candidate who has intermediate level qualifications (proven by his/her degree), and in practice, the company has only recruited employees having intermediate or higher-level qualifications, this means that the vacancy only requires employees at an intermediate level. Accordingly, the maximum probationary period is 30 days.

_If the company looks for a candidate who has intermediate level qualifications (proven by his/her degree), but in practice, the company has recruited employees without qualifications, this means the company has changed its original job requirements. Accordingly, the maximum probationary period is 06 working days.

Returning to the cases in question at the beginning, specifically:

_If the company looks for a candidate who has intermediate level qualifications (proven by his/her degree), and in practice, the company has only recruited employees having intermediate or higher-level qualifications, this means that the vacancy only requires employees at an intermediate level. Accordingly, the maximum probationary period is 30 days.

+In this case, it is understood that the company does not require the staff to have any professional qualification for the room cleaning position because the company recruited some staff who had not even graduated from high school.  So, the maximum probationary period is 06 working days.

_ “For other positions (receptionists, room supervisors, etc.): 60 days of probation. Some staff who only graduated from high school or intermediate vocational school are still recruited.”

+In this case, it is understood that the company requires the staff to have a high school diploma at the minimum.  So, the maximum probationary period is only 06 working days as well.

– Written by LE & TRAN | Vietnam’s Premier Business Litigation Firm