In the process of recruiting and retaining employees, the probationary period plays an important role in shaping the employment relationship between employer and employee. However, when the probationary period ends, establishing and strengthening the labor contract relationship requires caution and a proper understanding of legal regulations as well as the rights and responsibilities of both parties.
Once the probationary period ends, converting the labor relationship from probation to an official contract is not only an important step, but also an opportunity for both parties to better understand the commitments, rights, and responsibilities that they set out. In this context, establishing a clear and fair contractual employment relationship is a key factor in maintaining a positive and stable working environment.
Please refer to this article to understand more details on the process of establishing a probationary relationship and the important factors that both parties need to consider to ensure a sustainable and beneficial labor relationship for both employers and employees.

1. How long is the prescribed probation period?

The length of the probationary period will depend on the agreement of the parties, but it can not exceed the timeframe prescribed by the Labor Law for each specific position. Accordingly, the probationary period will not exceed 60 days for jobs with professional titles that require professional and technical qualifications of a junior college degree or higher; No more than 30 days for positions that require a secondary vocational certificate, professional secondary school, positions of or for technicians, and skilled employees; No more than 06 working days for other jobs, and no more than 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. Manage probationary relationships

• Create a table to evaluate probation results

To ensure the recruitment of personnel who meet job requirements, enterprises need to establish a probation contract or a labor contract with a probationary clause with the probationary individual at the time of accepting individuals to participate in the probationary relationship. In addition to fully meeting the basic contents prescribed by the labor law, the probation contract also needs to specify details or attached reference documents related to the job description of the probationary individual, and standards for evaluating their probationary performance. Normally, businesses will evaluate the probation results a few days before the probationary period ends. However, currently, many enterprises have multiple evaluations throughout the probation period corresponding to the level of standards that need to be met from low to high. This is to closely monitor the individual’s work results, in case when the set standards are not met, the probationary relationship will be terminated before the end of the probationary period. Many enterprises fail to track probation periods, leading until the probationary period ends for a certain period, the enterprise will notify the probationary individual of the probation results. However, according to the guidance of previous labor law regulations and recorded in Precedent No. 20.2018, a labor relationship automatically arises at the end of the probationary period.

Citing Precedent No. 20.2018/AL, it records the labor relationship that arises after the end of the probationary period but the company did not notify as follows:

 “[2] Mr. Tran Cong T joined L Limited Liability Company according to the job offer dated August 20, 2013, with the following content: “Type of labor contract: A fixed-term employment contract (12 months or more). Probationary period: 02 months. At the end of the probationary period (from September 9, 2013, to November 9, 2013), Mr. T did not receive notice of the probation results but continued to work. L Limited Company says that after 2 months of probation, Mr. T does not meet the job requirements, so the Company decided to give Mr. T another 1-month probation to create conditions for Mr. T to complete the task and have more time to evaluate Mr. T’s capabilities. However, there are no documents showing that there was an agreement between Mr. T and L Limited Company to extend the probationary period.

[3] Clause 1, Article 27 of the Labor Law stipulates the probationary period “Not exceed 60 days for jobs with professional titles that require professional and technical qualifications of a junior college degree or higher”. In the self-declaration dated June 14, 2014, the representative of L Limited Company presented: “The company clearly understands that, after the end of the probationary period (60 days), if the labor contract has not been signed, the employee will be officially employed under a 12-month fixed-term contract”. Thus, the representative of L Limited Liability Company admitted that after the probationary period ended, Mr. T became an official employee under a labor contract with a term of 12 months. L Limited Liability Company negotiated with Mr. T to terminate the labor contract on December 28, 2013. When negotiations were fruitless, on December 29, 2013, the General Director of L Limited Liability Company issued Decision No. 15/QDKL-2013 on unilaterally terminating the labor contract with Mr. T. Therefore, there is enough basis to confirm that the relationship between Mr. T and L Limited Company after the probationary period is over is a labor contract relationship.”

• Establish Non-Disclosure agreements and agreements on anti-competition and conflicts of interest

For low-level personnel positions without access to important company information, we will usually find that the above documents are not required. However, for management positions or personnel with access to important company information, or for enterprises in industries where information leakage will directly impact revenue and the company’s market competition, Non-Disclosure agreements and agreements on anti-competition and conflicts of interest will be necessary. These documents will be the basis for binding the responsibilities of probationary individuals, and when an actual violation occurs, the enterprise will have a basis to rely on the provisions of labor law and civil law to require that individual to take responsibility.

Therefore, it can be seen that not only labor relations are strictly managed, but even probationary relations need to be managed and monitored by enterprises. This will help enterprises limit risks, and avoid wasting too much time for the enterprise’s human resources department to deal with related consequences or participate in the dispute resolution process.

Time of writing: 25/02/2024

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