Answer:
Are probation periods determined by the enterprise based on the Employee’ qualifications or only based on the nature and complexity of job and the requirements of job title?
According to Article 25 of the Labour Code, probation period will be based on the nature and complexity of the job but not on the Employee’s qualifications. Accordingly, the probation period is determined as follows:
If a job is determined to have the title of enterprise managers pursuant to the Law on Enterprises, and the Law on Management and Use of State Capital Invested in Production and Business in Enterprises, the probation period is no longer than 180 calendar days;
If a job is determined to have the titles requiring professional and technical qualifications of college-level or higher, the probation period is no longer than 60 calendar days;
If a job is determined to have the title requiring professional and technical qualification of intermediate level or technical workers or professional staffs or higher, the probation period is no longer than 30 calendar days; and
Probation period must not exceed 06 working days for other jobs.
Regarding the determination of specific technical and professional qualifications for the jobs having the respective titles (high school, intermediate, college, or university level …), the Employer will determine by themselves what type of qualification is appropriate in the enterprise’s recruitment notice. It should be noted that the determination of professional and technical qualifications must be reasonable and based on the complexity of the jobs to be the basis for calculating the probation period of the Employee in accordance with the provisions of the Labour Code.
The above regulations conclude that the determination of probation periods will be based on the nature and complexity of the job. The Employee’s qualifications will only be an element for the Employer to decide to recruit after the Employer has determined specific professionals and technical qualifications for those job positions. For example, an Employee who has a university degree probates for a job that requires only professional and technical qualifications from vocational intermediate, the maximum probationary period applicable to such Employee must not exceed 30 calendar days.
If not based on the qualifications of the Employee, is the fact that the Employer recruits: (i) the Employee who has not graduated from high school and decides the probation period is 30 days; and (ii) the Employee who has graduated from high school and decides that the probation period is 60 days, in compliance with the provisions of the Labour Code?
For the above-mentioned cases, the job that the Employer recruiting is understood to be one not requiring professional or technical qualifications (the Employee is required not to be graduated from high school or only graduated from high school).
Therefore, according to the provisions of the Labour Code as analysed in Item 1 above, the fact that the Employer applies a 60 calendar-day probation period (applicable to the jobs with the titles requiring professional and technical qualifications from college or higher) or 30 calendar days one (applicable to jobs with the titles requiring professional or technical intermediate, professional technical qualification, intermediate professional, technical worker, professional staff) for a job which does not require any specific professional or technical qualifications is not consistent with the provisions of the labour law. Instead, the prescribed probation period defined for the above jobs will be only 06 working days at most.
