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LEGAL ISSUES IN PROBATION

In the current context, before the parties officially enter into an employment relationship through a final employment contract, there is usually a probationary period. Although the probation has not been specifically defined in the current Labor Law, legal issues regarding it have been regulated. During this period, employees as well as employers need to pay attention to some legal issues in order to ensure their rights and benefits and to avoid risks.

Legal issues in probation - htlaw.vn

1. General provisions

As mentioned, although there is no clear definition, in an easy-to-understand way, probation is a voluntary agreement between two parties and is not mandatory. It is a short-term process in which both parties work together to evaluate the employee’s capacity, qualifications, awareness, working conditions, and labor utilization plan before making decisions to sign an official labor contract or continue to implement the contract that has been agreed upon.

Considering the probationary period, current laws still prioritize the agreement of each party, but that agreement must be within the allowed framework. Specifically, according to the regulations in Article 25 of the Labor Law 2019:

“ … Only one probationary period is allowed for a job and the probation shall not exceed:

1. 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;

2. 60 days for positions that require a junior college degree or above;

3. 30 days for positions that require a secondary vocational certificate, professional secondary school; positions of or for technicians, and skilled employees;

4. 06 working days for other jobs”.

Considering salary, labor laws still prioritize the will of the parties. However, employees should note that during the probation, the salary must be at least 85% of the salary for that job.

II. Content and form of the probationary contract (agreement)

Considering the form, current regulations require the parties to agree on the probationary period, but there is no clear regulation on the form. The parties can agree on the content of the probation in the labor contract or agree on the probation by signing a separate probationary contract. In the case where the parties agree on the content of the probationary period in the labor contract, a written form is mandatory. However, to limit the risk of disputes, the parties should clearly agree in writing from the beginning in all cases.

Considering the content, the prevailing law respects all agreements and only stipulates mandatory terms. Compared to a regular labor contract, the mandatory content of the probationary relationship is reduced. Specifically, according to the regulations in Article 21 and Clause 2, Article 24 of the Labor Law 2019, the content of the probationary contract (agreement) includes:

“a) The employer’s name, address; full name and position of the person who concludes the contract on the employer’s side;

b) 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;

c) Tasks and workplace(s);

đ) Job – or position – based salary, form of salary payment, due date for payment of salary, allowances and other additional payments;

g) Working hours, rest periods;

h) Personal protective equipment for the employee”.

III. Other notes

Considering the period during and after probation:

During the probationary period, each party has the right to revoke the probationary contract or the labor contract without prior notice and have no obligation of compensation.

On the other hand, after the probationary period ends, the employer must inform the employee of the probationary results. If the probation is satisfactory, the employer will continue to implement the labor contract that has been agreed upon, in the case where the probationary period is agreed upon in the labor contract. Otherwise, the employer must sign a labor contract in the case of a separate probationary contract.

Considering insurance policies:

Article 2 of the Social Insurance Law 2014 mentions the subjects of compulsory social insurance and only requires employees with a labor contract of indefinite duration or a fixed-term contract of at least three months to participate in compulsory social insurance. Therefore, this subject is not subject to mandatory social insurance participation policies.

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    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
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DISMISSAL PROCESS AGAINST EMPLOYEE UNDER LEGAL PROVISIONS

Pursuant to the provisions of the Labor Code 2019, dismissal is one of the highest and most serious forms of disciplinary measures applied by the Employer for the Employees. Therefore, the disciplinary process of dismissal is strictly regulated to best protect employees as well as bring fairness, equality and transparency to all laborers in the workplace.

I. Cases in which dismissal discipline is imposed

Pursuant to Article 125, Labor code 2019, cases in which dismissal discipline is imposed:

“1. The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace;

2. The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations;

3. The employee repeats a violation which was disciplined by deferment of pay rise or demotion and has not been absolved. A repeated violation means a violation which was disciplined and is repeated before it is absolved in accordance with Article 126 of this Code.

4. The employee fails to go to work for a total period of 05 days in 30 days, or for a total period of 20 days in 365 days from the first day he/she fails to go to work without acceptable excuses”.

Cases regarded as acceptable excuse include natural disasters, fires, being sick or relatives being sick certified by competent medical examination and treatment establishments and other cases specified in labor regulations.

Dismissal process against employee under legal provisions - htlaw.vn

II. Cases in which dismissal discipline cannot be imposed

Pursuant to Clause 4 and 5, Article 122, Labor code 2019, dismissal discipline shall not be taken against an employee during the period when:

“a) The employee is taking leave on account of illness or convalescence; or on other types of leave with the employer’s consent;

b) The employee is held in custody or detention;

c) The employee is waiting for verification and conclusion of the competent agency for acts of violations, stipulated in Clause 1 and Clause 2 Article 125 of this Labor Code (The employee commits an act of theft, embezzlement, gambling, deliberate infliction of injuries or uses drug at the workplace; The employee discloses technological or business secrets or infringing the intellectual property rights of the employer, or commits acts which are seriously detrimental or posing seriously detrimental threat to the assets or interests of the employer, or commits sexual harassment in the workplace against the internal labor regulations);

d) The employee is pregnant, on maternal leave or raising a child under 12 months of age.

… employee commits a violation of internal labor regulations while suffering from the mental illness or another disease which causes the loss of consciousness ability or the loss of his/her behavior control”.

III. Dismissal procedure

Because dismissal is one of the disciplinary measures, the procedure for dismissing an employee is similar to the procedure for disciplining employees. Pursuant to Article 70, Decree 145/2020/ND-CP, the procedure of dismissal is carried out as follows:

At first, in case an employee’s violation is exposed when it is committed, the employer shall make a violation record and notify the internal employee representative organization, the employee’s legal representative (if the employee is under 15). When an employee’s violation is discovered after it is committed, evidences of such violation must be gathered.

Secondly, within the disciplinary period, the employer shall hold a disciplinary hearing as follows:

“a) At least 05 working days before the disciplinary hearing is held, the employer shall notify the mandatory participants (the representative organization of employees; and the employee is physically present and has the right to defend him/herself, request a lawyer or the representative organization of employees to defend him/her; if the employee is under 15 years of age, his/her parent or a legal representative must be present) time and location of the hearing, full name of the employee facing disciplinary procedure and his/her violations. Make sure the participants receive the notification before the hearing takes place;

b) Upon receipt of the employer’s notification, the mandatory participants shall send the employer confirmation of their participation. In case any of the mandatory participants cannot participate in the hearing, the employee and the employer shall reach an agreement on change of time and/or location of the hearing. In case such an agreement cannot be reached, the employer shall make the final decision;

c) The employer shall conduct the disciplinary hearing at the time and location agreed upon. In case any of the mandatory participants do not confirm his/her participation or is not present, the employer shall still conduct the hearing”.

Thirdly, minutes of the disciplinary hearing shall be taken and ratified before the end of the hearing. The minutes shall bear the signatures of the mandatory participants. In case a person refuses to sign the minutes, the minutes taker shall specify his/her full name and reasons for refusal in the minutes.

Hence, one of the conditions for conducting the meeting is the full participation of the parties including employers, employees and representatives from the internal representative organization of employees. Nonetheless, if employees and representatives do not attend, and no agreement is reached after then, the meeting can still take place.

IV. Time limit for taking dismissal measure

In accordance with prevailing law (Article 123, Labor code 2019), in principles, time limit for taking disciplinary measure (including dismissal measure) is 6 months. However, for specific cases including violations related to property, finance, technology secrets, and business secrets, the time limit in this situation was 12 months.

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Labor Law.

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    • Phone number: +84 935 439 454. 
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NOTES WHEN ENTERPRISES UNILATERALLY DISMISS EMPLOYEES

I. Cases where the Company has the right to unilaterally terminate the contract with the Employee

Pursuant to Clause 1, Article 36 Labor code 2019:

“a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);

b) The employee is sick or has an accident and remains unable to work after having treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.

Upon recovery, the employer may consider concluding another employment contract with the employee;

c) Due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation or downsizing of production and business at the request of competent state agencies, the employer has sought all remedies but still forced to reduce workplaces;

d) The employee is not present at the workplace after the time limit specified this Labor Code;

đ) The employee reaches the retirement age specified, unless otherwise agreed by the parties;

e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

g) The employee fails to provide truthful information during the conclusion of the employment contract in a manner that affects the recruitment”.

Notes: For the days when the employer violates the notification obligation, the employee will receive the corresponding salary.

Notes when enterprises unilaterally dismiss employees - htlaw.vn

II. Procedures

Step 1. In general principles, employers take responsibilities to notify employees of the unilaterally termination of labor contract, specifically:

“a) at least 45 days in case of an indefinite-term employment contract;

b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

c) at least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases employees get sick or have accidents as above mention;

d) The notice period in certain fields and jobs shall be specified by the government”.

Step 2. The employee continues to perform the job until the contract is terminated and the work is handed over (if there is a prior agreement) and the employer only pays the salary, bonus and other amounts (severance / redundancy allowances). Within 14 working days following the termination of an employment contract, both parties shall settle all payments in respect of the rights and interests of each party. In the following cases, such period may be extended, but shall not exceed 30 days:

* Shutdown of business operation of the employer that is not a natural person;

* Changes in the organizational structure, technology or changes due to economic reasons;

* Full division, partial division, consolidation, merger of the enterprise; sale, lease, conversion of the enterprise; transfer of the right to ownership or right to enjoyment of assets of the enterprise or cooperative;

* Natural disasters, fire, hostility or major epidemics.

Step 3. On the last day of the contract, the parties sign the handover minutes and complete the procedures by signing salary and bonus documents (if any), ending the validity of the labor contract.

III. Form of notifications

Employers have obligations to send a written notice to the employee of the termination of his/her employment contract, except for the following cases (Clause 1, Article 45, Labor code 2019):

a. The employee is sentenced to imprisonment without being eligible for suspension or release as prescribed in the Criminal Procedure Code, capital punishment or is prohibited from performing the work stated in the employment contract by an effective verdict or judgment of the court.

b. The foreign employee working in Vietnam is expelled by an effective verdict or judgment of the court or a decision of a competent authority.

c. The employee dies; is declared by the court as a legally incapacitated person, missing or dead.

d. The employer that is a natural person dies; is declared by the court as a legally incapacitated person, missing or dead. The employer that is not a natural person ceases to operate, or a business registration authority affiliated to the People’s Committee of the province (hereinafter referred to as “provincial business registration authority”) issues a notice that the employer does not have a legal representative or a person authorized to exercise the legal representative’s rights and obligations.

đ. The employee is dismissed for disciplinary reasons.

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Labor Law.

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    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
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CAN COMPANIES DEDUCT COMPENSATORY WEEKLY DAYS OFF FOR HOLIDAYS FROM ANNUAL LEAVES?

Can companies deduct compensatory weekly days off for holidays from annual leaves? - htlaw.vn

I. Provisions on weekly day off

Prevailing law stipulates that an employee is entitled to at least twenty-four consecutive hours of day off per week. In case the employee has to work continuously in light of the attributes of career or special reasons, the employee is still guaranteed to have at least four days off per month.

Regarding the specific weekly days off, the employer has the right to decide to arrange the rest day to be on Sunday or another determined day of the week but must be recorded in the labor regulations.

In case, if the weekly days off coincides with a public holiday or New Year according to the Labor Law, the employee is entitled to have compensatory leaves on the next working days.

II. Provision on yearly days off

According to the prevailing law, employee who has worked for full 12 months for an employer is entitled to annual leave with full salary according to labor contracts as follows:

“a) 12 working days for employees who work in normal working conditions;

…”

III. Provisions on public holidays

The prevailing law stipulates public holidays and the number of days in detail as follows:

“a) Gregorian Calendar New Year Holiday: 01 day (the 1st of January of the Gregorian calendar)

b) Lunar New Year Holidays: 05 days

c) Victory Day: 01 day (the 30th of April of the Gregorian calendar)

d) International Labor Day: 01 day (the 1st of May of the Gregorian calendar)

đ) National Day: 02 days (the 2nd of September of the Gregorian calendar and the previous or next day)

e) Hung Kings Commemoration Day: 01 day (the 10th of the third month of the Lunar calendar)”

IV. What should companies do when they have weekly days off different from Saturday and Sunday during the upcoming Hung Kings Anniversary, April 30 and May 1??

Currently, most businesses stipulate that the weekly days off is two days (Saturday and Sunday) or one day (Saturday or Sunday). This will affect the number of days off in the upcoming Hung Kings Anniversary, April 30 and May 1. However, this problem is resolved as follows:

+ For companies with weekly days off on Saturday and Sunday, employees will be entitled to make up for the rest of the week on the next working day (May 2 and 3). The total number of days off is 5 days.

+ For companies that have weekly days off on Saturday or Sunday, employees will be compensated for the weekly rest day on the next working day (May 2). The total number of days off is 4 days.

+ For companies that do not implement a fixed schedule of two days off as Saturday and Sunday but another day of the week, employees are only entitled to 3 holidays as prescribed. However, taking only 3 days off will sometimes not satisfy the needs of employees, or the operating situation of the business. Companies can stipulate the extra vacation schedule to suit the needs and plans of the two parties. In this case, there are some businesses that will agree and notify the employer about deducting the remaining days of leave from the annual leave, so that the employee has full 5 days off.

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Labor Law.

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
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STANDARDS OF TEACHERS AT FOREIGN LANGUAGE CENTER

Standards of teachers at foreign language center - htlaw.vn

I. Standards for Vietnamese teachers

Vietnamese teachers are eligible to teach foreign languages ​​when they meet one of the following criteria:

– Having a college degree in foreign language pedagogy or higher;

– Having a college degree in a foreign language or higher and a certificate of pedagogy.

II. Standards for foreign teachers

For native teachers: Teachers who are native speakers of foreign languages ​​(for each specific foreign language): Possess a college degree or higher and an appropriate certificate of foreign language teaching.

For non-native foreign teachers:

Foreign teachers are eligible to teach foreign languages ​​when they meet one of the following criteria:

– Having a college degree in foreign language pedagogy or higher;

– Having a college degree in foreign languages ​​or higher and an appropriate certificate of foreign language teaching;

– Having a college degree or higher, a certificate of foreign language ability at level 5 or higher according to the 6-level foreign language competency framework for Vietnam or equivalent and an appropriate certificate of foreign language teaching.

(Legal basis: Circular 21/2018 of the Ministry of Education and Training)

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Work permit.

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    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
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SOCIAL INSURANCE SCHEME FOR MATERNITY CASES

Social insurance scheme for maternity cases - htlaw.vn
No.ContentLegal BasisNote
1Definition:
Social insurance is a social security policy of the state to protect the interests of employees, this is a policy to ensure and offset a part of an employee’s real income when losing income. for cases of leave of work, maternity, sickness, labor accident, occupational disease, end of working age or death, on the basis of contribution to the social insurance fund
Compulsory social insurance:
- Sick;
- Maternity;
- Occupational accidents and diseases;
- Retire;
- Survivorship.		Clause 1 Article 3
Clause 1 Article 4 Law on Social Insurance
2Conditions to be entitled to the maternity regime: In one of the following cases:
- Pregnant female employees;
- Female workers give birth
- Female employees are surrogates and the mother asks for surrogacy
- The employee adopts a child under 6 months old;
- Female employees put on IUDs, employees take sterilization measures;
- Male employees who are paying social insurance premiums whose wives give birth to children.
Case: Female employees give birth; female employees as surrogates and mothers asking for surrogacy; employees adopt children under 06 months old; must pay social insurance premiums for full 06 months or more within 12 months before giving birth or adopting a child.
Case: A female employee who has given birth to a child and has paid social insurance premiums for full 12 months or more but has to take a leave of absence from work to take care of the pregnancy when she is pregnant under the direction of a competent medical examination and treatment establishment shall pay social insurance premiums. from full 03 months or more in the 12 months before giving birth.		Article 31 Law on Social Insurance
3Term to be entitled to benefits when giving birth:
- Female employees giving birth are entitled to take maternity leave before and after giving birth for 6 months. In case female employees have twins or more, from the second child onwards, for each child, the mother is entitled to an extra month of leave.
- The maximum period of maternity leave before giving birth is not more than 02 months.		Clause 1 Article 31 Law on Social Insurance
4Level of maternity benefits:
The monthly allowance is equal to 100% of the average monthly salary on which social insurance premiums are based for the 06 months before taking leave for the maternity regime.		Article 39 Law on Social Insurance

       To save time learning about the law, filling out forms, and submitting documents, you can contact HTLaw for consultation and legal services related to Labor Law.

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    • Email: hue.truong@htlaw.vn
    • Phone number: +84 935 439 454. 
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Report the situation of using foreign employees

report the situation of using foreign employees

HT Law sends customers information to report the situation of using foreign employees for organizations and enterprises operating in Ho Chi Minh City according to Official Letter 18502/SLDTBXH-VLATLD issued on May 30, 2022.

Báo cáo tình hình sử dụng người lao động nước ngoài

Pursuant to Decree 152/2020/ND-CP issued on December 30, 2020 and Circular 01/2022/TT-BLDTBXH issued on January 25, 2022, in order to strictly comply with regulations on reporting the situation of using foreign employees and providing information on the working status of working foreign employees, the Department of Labor, War Invalids and Social Affairs proposes It is recommended that the units do the following:

    1. Make reports on the employment of foreign employees for 6 months and for the annual year as prescribed in Article 6 of Decree No. 152/2020/ND-CP:
    • Report form: Form No. 07/PLI, Appendix 1, Decree 152/2020/ND-CP
    • Time to submit reports:

+ 6-month report: The timeline for data aggregation is from December 15 of the previous year to June 14 of the reporting period.

Time to submit the report: from June 15 to July 4

+ Annual report: Timeline for data collection from December 15 of the previous year to December 14 of the reporting period.

    • Report submission form: Organizations and enterprises submit reports to the Department of Labor, War Invalids and Social Affairs (through the Department of Employment and Occupational Safety) in the online form by:

Access the Google Form link: https://forms.gle/JKW4gGgKUQfsrJYcA

Reports submitted online include general information, a signed and red-stamped copy of the report (*.pdf file) and a soft copy (Word or Excel file) for easy tracking and consolidation.

    1. Information on the working status of foreign workers currently working as prescribed in Article 14 of Circular 01/2022/TT-BLDTBXH:
    • Form of information provision form: Form No. 03 in the Appendix issued together with Circular 01/2022/TT-BLDTBXH.

Foreign employees self-declare the contents according to Form No. 03, in case foreigners are unable to do so, the organization or enterprise employing foreign employees shall declare information.

    • Form of implementation:

Organizations, businesses and individuals access the Google Form link: https://forms.gle/haXiymPeuKLeGQPx8

    • Time to provide information: From June 1 to June 30

After the time specified above, the Department of Labor, War Invalids and Social Affairs does not accept reports submitted by organizations or enterprises; at the same time, it will be aggregated as a basis to confirm the observance of legal regulations at the request of agencies to avoid regulations according to Article 32 of Decree No. 12/2022/ND-CP dated January 17, 2022 The Government’s regulations on sanctioning of administrative violations in the field of labor, social insurance and Vietnamese employees working abroad under contracts.

HT provides legal services to report employee usage situations. If you do not have time to carry out the above procedure, you can contact us to receive a specific and detailed quote.

Contact us

    • Email: hue.truong@htlaw.vn
    • Phone no.: +84 935 439 454. 
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NEW POINT ON MATERNITY BENEFITS FOR EMPLOYEES IN VIETNAM

According to the latest Circular No 06/2021/TT-BLDTBXH issued on July 7th, 2021, the Ministry of Labor, War Invalids and Social Affairs amended detailed regulations and guidance for the implementation of a number of articles of the law regarding social insurance. In particular, there are three notable new points about maternity benefits for male and female workers as follows:

(i) Clarifying
the case of receiving a one-time allowance upon childbirth for male workers

According
to Clause 5, Article 1 of Circular 06/2021/TT-BLDTBXH, Point c, Clause 2,
Article 9 of Circular 59/2015/TT-BLDTBXH is amended as follows: “In cases where
the mother participates in social insurance and she is not eligible for
benefits but the father meets all the conditions specified at Point a, Clause
2, Article 9 of Circular 59/2015/TT-BLDTBXH at the time of childbirth, the
father is entitled to a one-time allowance upon childbirth according to Article
38 of the Law on Social Insurance.”

The Regulation
at Point a, Clause 2, Article 9 of Circular 59/2015/TT-BLDTTXH, states, “in
case only the father participates in social insurance, the father must fully
pay the social insurance premiums at least 06 months within 12 months before childbirth.”

Previously,
male workers were only entitled to a one-time allowance when their wives did
not participate in social insurance. When the new regulations take effect, male
workers will be entitled to a one-time allowance even if both the husband and
wife participate in compulsory social insurance but the wife is not eligible
for maternity benefits.

(ii) Male
workers are entitled to maternity leave

From
September 1st, 2021, male workers may take maternity leave according
to the  provisions of Clause 2, Article
34 of the Law on Social Insurance. In case of multiple leave, the most recent leave
taken must still be within 30 days from the date of childbirth and the total
period of maternity leave must not exceed the prescribed time.

Therefore,
the period of maternity leave for male workers who are paying social insurance
can be divided into several flexible times within the first 30 days after the
date of childbirth, as follows:

a/ 5 working days;

b/ 7 working days, in case their wives
undergo a surgical birth or give birth to children before 32 weeks of
pregnancy;

c/ 10 working days, in case their wives
give birth to twins; or additional 3 working days for each infant after the
second;

d/ 14 working days, in case their wives
give birth to twins or more infants and underwent an operation during childbirth.

(iii)
Twin pregnancy is entitled to maternity benefits according the number of
children born

This
new regulation helps female workers receive additional benefits when having a
dead or stillborn child.

Specifically,
Clause 6, Article 1 Circular 06/2021/TT-BLDTBXH, Clause 3, Article 10 of
Circular 59/2015/TT-BLDTBXH has been amended as follows: “In case a female
employee is pregnant with twins or more, then her children die before birth or
are stillborn, the period of maternity leave and allowance upon childbirth and
the one-time allowance upon childbirth shall be calculated according to the
number of children born, including all stillborn and dead children.”

Thus, the previous regulation on pregnant employees with twins whose children die before birth or are stillborn, dispensing maternity benefits according to the surviving children, has been amended in the new circular. Employees who are pregnant with twins whose children die or are stillborn can receive maternity benefits based on the number of children born, including stillbirths and deaths.

Please feel free to contact us by email: huonghue.ht@htlaw.vn or phone number +84 935 439 454 if you need any further clarification. We look forward to long-term co-operation with you.