Our company is currently recruiting for the position of Sales Executive, which requires a probation period of two months. To save time, we intend to sign an official labor contract right away, in which the probation period and relevant terms will be clearly stated. Are we allowed to combine the probation content within the labor contract? If yes, what should we pay attention to?
Answer
According to the clause 1 Article 24 the Labor Code 2019: “An employer and an employee may include the contents of the probation in the employment contract or enter into a separate probation contract.”
Accordingly, when agreeing on probation, the employer and employee may choose one of two options: Include the contents of the probation in the official labor contract, or Sign a separate probation contract. Both approaches are legally valid, provided that they comply with the regulations regarding probation duration, salary, and conditions as prescribed by the Labor Code.
Therefore, the company’s intention to incorporate probation terms into the labor contract is entirely compliant with the law. However, some key points should be noted when including probation terms in the official labor contract:
- Probationary Salary:
According to Article 26 of the Labor Code 2019: “The probationary salary shall be negotiated by both parties and shall not be lower than 85% of the offered salary.”
Therefore, based on the information you provided, the company should clearly specify the probationary salary in the labor contract, for example: “The probationary salary is equivalent to 85% of the official salary as stated in this Labor Contract.”
Clearly stating the probationary salary ensures transparency for both the employer and employee. Moreover, it serves as a solid legal basis for accurate salary payments and helps prevent potential disputes, thereby protecting the rights of both parties.
- Probation Duration:
Pursuant to Article 25 of the 2019 Labor Code:
“The probationary period shall be agreed upon by both parties based on the nature and complexity of the job, but probation shall only be conducted once for a given job and must meet the following conditions:
1.Not exceeding 180 days for jobs involving enterprise managers as prescribed by the Law on Enterprises and the Law on Management and Use of State Capital Invested in Production and Business at Enterprises;
2.Not exceeding 60 days for jobs with professional or technical titles requiring a qualification from college level or higher;
3.Not exceeding 30 days for jobs with professional or technical titles requiring an intermediate-level qualification, technical workers, or professional staff;
4.Not exceeding 06 working days for other jobs.”
Accordingly, the company needs to determine the job position of each employee in order to stipulate a probationary period that complies with the regulations..
- Completion of the Probation Period
-Upon the expiry of the probationary period, the employer shall inform the employee of the probation result:
If the result is satisfactory: shall keep implementing the concluded labor contract.
If the result is not satisfactory: may terminate the concluded employment contract
Note: During the probation period, if either party no longer wishes to proceed, they have the right to terminate the probation contract or the labor contract without prior notice and without compensation obligation.
Legal basis: Article 27 of 2019 Labor Code.
