Question
Our company currently applies a two-month probationary period to all positions, including administrative staff, security guards, and janitorial personnel. Is this practice compliant with Vietnamese labor law? If the probationary period exceeds the statutory limit, can the company be subject to administrative penalties?
Answer
Under Article 25 of the 2019 Labor Code, the probationary period is agreed upon by the employer and the employee based on the nature and complexity of the job. However, an employee may only be placed on probation once for a particular position, and the probationary period must not exceed the statutory limits.
Specifically, the maximum probationary periods are as follows:
· Up to 180 days for enterprise managers as prescribed by law;
· Up to 60 days for positions requiring professional or technical qualifications at the college level or higher;
· Up to 30 days for positions requiring intermediate-level qualifications, skilled workers, or professional employees;
· Up to 06 working days for all other positions.
Accordingly, employers may not apply a uniform probationary period to all job positions. The appropriate probationary period must be determined based on the qualification requirements and nature of each specific position. For example, requiring a two-month probationary period for security guards or janitorial staff may not comply with the Labor Code if such positions do not fall within the category of jobs eligible for a probationary period of up to 60 days.
If an employer requires an employee to serve a probationary period exceeding the statutory maximum, the employer may be subject to administrative sanctions under Article 9 of Decree No. 12/2022/ND-CP. The applicable fine ranges from VND 2,000,000 to VND 5,000,000 for individual employers. Where the employer is an organization (including an enterprise), the fine is doubled pursuant to Clause 1, Article 6 of Decree No. 12/2022/ND-CP, resulting in a penalty ranging from VND 4,000,000 to VND 10,000,000.
In practice, many employers apply a uniform two-month probationary period to all positions for administrative convenience without assessing the qualification requirements of each role. This is a common compliance issue that may expose employers to administrative penalties during labor inspections. Therefore, employers are advised to establish clear recruitment criteria and job descriptions for each position in order to determine the appropriate probationary period in accordance with Vietnamese labor law.
Conclusion
Employers may only apply probationary periods within the statutory limits prescribed by the 2019 Labor Code for each category of work. Requiring employees to undergo probation beyond the legally permitted period may result in administrative penalties and increase the employer’s legal risks in employment management.
If your company requires legal advice on probationary agreements, determining the appropriate probationary period, or reviewing employment documentation to ensure compliance with Vietnamese labor laws, please contact SB Law. Our lawyers and legal professionals are ready to provide timely and practical legal assistance tailored to your specific circumstances.
