An employee continues working after ending the probationary period. Is this case be considered as an

An employee continues working after ending the probationary period. Is this case be considered as an official employee?
Posted date: 14/10/2020

Dear FDVN Law Firm, I hope FDVN Law Firm will advise me on the following issues: On March 1, 2020, I sign a probationary contract at Company M, the probationary period is 1 month, my job is a Director Assistant, the salary is 8,000,000 VND / month. If my probationary period meets the requirement, Company M will sign a two-year labor contract with me. After the probationary period ended, the company did not sign a formal labor contract with me, I still went to work and thought that I was an official employee. On April 20, 2020, I received the decision on terminating the probationary contract because of unsatisfactory probation. Thereby,  Company M terminates the probationary contract with me after ending the probationary period is in accordance with the law or not? In this case, what can I do to protect my benefits? Thank you!

 

FDVN’s Opinion

 FDVN Lawfirm'd like to say thank you for trusting our legal services. After studying the legal regulations, FDVN would like to advise you as follows:

On March 1, 2020, you sign a one-month probation contract, therefore on March 31, 2020, you complete the probation contract, according to Article 29 of the 2012 Labor Code on Expiry of the probation periods: "If the probational job is satisfactory, the employer shall sign a labor contract with the employee." According to the above provisions, on March 31, 2020, Company M had responsible for announcing whether the probation pass or not. If the probation was passed, Company M should have signed the labor contract.

On April 20th 2020 Company M decided to terminate the probation contract with you, but the probation contract had been ended and you had been working for 20 days. According to Case Law 20/2018/AL on establishing a labor contract  after ending the probation period is as follows:

“The employer has an invitation to work with the contents of the type of labor contract and the probation period. The employee has been fulfilled according to the probation period in the job invitation letter, and continues working without any other agreements between the employer and the employee. In this case, it is necessary to define the employee and the employer are established the labor contractual relationship. ”

According to the above provisions, when the probation period expires, company M does not sign a labor contract with you but you still go to work, the company don’t have any opinion, which means the two parties signed an official labor contract. Thus, on April 20th 2020 Company M decides to terminate the probation contract because of unsatisfactory probation, this is an act of unilaterally terminating the labor contract illegally.

To protect your benefits, you can file a lawsuit to the Court on Company M's unilateral illegal termination of the labor contract, forcing Company M to bear the liabilities of unilateral illegal termination under Article 42 of the 2012 Labor Code.

 

This is FDVN's  Opinion regarding your request. Hopefully, this advice would be useful to you.

Ha Thi Hien – FDVN Law firm


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