Legal regulations on relations involved in employment contracts after the probationary period

I. The current situation of relations involved in employment contracts after the probationary period

In practice today, relations involved in employment contracts after the probationary period show several notable points:

- Formality of employment contracts: After the probationary period, many enterprises still do not sign official written employment contracts, instead allowing employees to continue working by “default.” It makes employees be disadvantaged in their rights (social insurance, health insurance, unemployment insurance, etc.) and face difficulties in disputes due to a lack of legal documents proving an official employment relationship.

- Limited legal knowledge among employees: Many employees, especially unskilled workers, are not fully aware of their rights after the probationary period. They neither request the signing of an employment contract nor file complaints when their rights are violated, leading to working without adequate legal protection.

- Inadequate handling of unsuccessful probation: When an employee does not meet probationary requirements, employers often unilaterally terminate without giving notice or paying wages and allowances as required, leading to disputes.

II. Legal regulations on relations involved in employment contracts after the probationary period

1. What is a relation involved in an employment contract after the probationary period?

A relation involved in an employment contract (an employment relationship) after the probationary period is understood as the legal relationship established between the employee and the employer after the employee has completed the probationary period as agreed.

2. Is the employer required to sign an employment contract immediately after the probationary period ends?

According to Article 27 of the Labor Code 2019 on the conclusion of the probationary period, the employer must notify the employee of the probationary results:

- If the probation is satisfactory, the employer shall continue to perform the signed employment contract (in the case of a probationary agreement in the employment contract) or must sign an employment contract (in the case of a probationary contract).

- If the probation is unsatisfactory, the signed employment contract or the probationary contract shall be terminated.

Thus, if the probation is successful and only a probation contract was signed, the employer is required to sign an employment contract.

3. If an employee continues working after the probationary period without a signed employment contract, is it considered an employment relationship after the probation?

The Labor Code 2019 does not explicitly regulate whether continuing to work after the probationary period without signing an employment contract constitutes an employment relationship.

However, according to Case Law No. 20/2018/AL on establishing an employment relationship after the probationary period: If after completing the probationary period, the employee does not receive a probation result, and the parties neither sign an employment contract nor agree to extend the probation but the employee continues to work, it must be determined that an employment relationship has been established.

Although Case Law No. 20/2018/AL is based on the Labor Code 2012 (no longer effective from January 1, 2021), the Labor Code 2019 does not significantly differ in this regard. Therefore, this Case Law can still be applied.

Thus, after the probationary period, even if the company does not sign an employment contract, if the employee continues working, it is deemed that an employment relationship (official employment) has been established with the company.

III. Questions on relations involved in employment contracts after the probationary period

1. What is the fine for employers failing to sign employment contracts after the probationary period with employees who continue to work?

According to point d, clause 2, Article 10 of Decree No. 12/2022/ND-CP, the act of failing to sign an employment contract with an employee who meets probationary requirements (where the parties have signed a probation contract) is subject to a fine ranging from 500,000 VND to 1,000,000 VND.

2. Can the employer terminate the employment relationship before the due term?

Under clause 2, Article 27 of the Labor Code 2019, during the probationary period, either party has the right to terminate the signed probation contract or the employment contract without prior notice and compensation. Thus, the employer has the right to terminate the employment relationship before the due term during probation.

3. Must the employer notify the employee of the probation result to establish the employment relationship after the probation?

According to clause 1, Article 27 of the Labor Code 2019: Upon the end of the probationary period, the employer must notify the employee of the probation result.

Thus, the employer is required to notify the employee of the probation result to establish the relations involved in employment contracts after the probation.

4. If the employee disagrees with the employment contract’s contents after the probation, what rights do they have?

If the employee does not agree with the contents of the employment contract after the probation, they have the right to request amendments or supplements. According to Article 33 of the Labor Code 2019:

- During the performance of the employment contract, if either party requests to amend or supplement the contract’s contents, they must notify the other party at least 03 working days in advance.

- If the parties reach an agreement, amendments or supplements are made by signing an addendum or a new employment contract.

- If no agreement is reached, the parties continue performing the original contract.

5. How are the salary and benefits of employees in the employment relationship after the probation determined?

The salary and benefits of employees after the probation are determined according to the agreement in the official employment contract.

IV. Legal advisory services on relations involved in employment contracts after the probationary period

If you have questions or need legal consultation on relations involved in employment contracts after the probationary period, please contact NPLaw for direct advice and assistance from our experienced team.