CÓ ĐƯỢC TÍNH THỜI GIAN THỬ VIỆC CỦA NĂM 2018 VÀO THỜI GIAN LÀM VIỆC ĐỂ HƯỞNG TRỢ CẤP THÔI VIỆC KHÔNG

Legal situation:

I signed a 02-month probationary contract, from December 2018 to January 2019, with X Company Limited. Upon expiry of the probationary period, I continued to sign an employment contract and worked continuously for the Company until June 2026, when I resigned. Upon resignation, I requested the Company to include the aforementioned 02-month probationary period in my working period for the purpose of receiving severance allowance. However, the Company disagreed, arguing that the probationary contract was signed in 2018, when the law did not provide that the probationary period could be included in the working period for the purpose of receiving severance allowance. I would like to ask the Lawyer whether, in this case, the 02-month probationary period can be included in the working period for the purpose of receiving severance allowance.

FDVN’s opinions: Thank you for your trust in and for submitting your question to FDVN Partnership Law Firm (“FDVN”). After reviewing the information provided by you and comparing it with the current applicable legal provisions, we would like to provide our legal advice as follows:

Pursuant to Clause 2, Article 58 of the 2025 Law on Promulgation of Legal Normative Documents: “A legal normative document shall apply to acts and events occurring at the time when such document is in effect.”

In your case, the employment contract was terminated in June 2026. Therefore, the determination of the conditions for entitlement to severance allowance and the working period serving as the basis for calculating severance allowance shall, in principle, be made in accordance with the labor laws in effect at the time of termination of the employment contract, specifically the 2019 Labor Code and Decree No. 145/2020/ND-CP dated December 14, 2020 of the Government.

Article 46 of the 2019 Labor Code provides that, where an employment contract is terminated in accordance with Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of this Code, the employer shall be responsible for paying severance allowance to an employee who has worked regularly for the employer for at least 12 months, with each year of work being entitled to half a month's salary, except for cases where the employee is eligible for a pension in accordance with the law on social insurance and the case prescribed at Point e, Clause 1, Article 36 of this Code.

Under Clause 3, Article 8 of Decree No. 145/2020/ND-CP, the working period serving as the basis for calculating severance allowance and job-loss allowance is the total period during which the employee has actually worked for the employer, including the probationary period and the period of leave for enjoying sickness and maternity benefits in accordance with the law on social insurance, after deducting the period during which the employee participated in unemployment insurance and the working period for which the employer has paid severance allowance or job-loss allowance.

Accordingly, under the provisions applicable at the time of termination of your employment contract, the probationary period shall be included in the total actual working period for the purpose of determining the period of entitlement to severance allowance, after deducting the periods that are excluded in accordance with the law.

The above is FDVN's legal advice based on the current applicable legal provisions. We hope that this advice will help you clearly understand how to determine the number of times and the period of entitlement to unemployment benefits in accordance with the law.

Lawyer Le Huong - FDVN Law Firm