Question 5: How do Employers deal with Employees who do not give feedback on the notice of trial job result?

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Under the labour law, Employers are obliged to inform Employees of the trial job result during probation as follows[1]:
  • Notifying within 3 days prior to the end of the probationary period for Employees with a professional or technical qualification from college or higher (maximum probationary period of 60 days) or for Employees with a professional and technical intermediate qualification pertaining to occupations and majors, technical workers or professional staff (maximum probationary period of 30 days); or
  • Notifying on the last day at the end of the probationary period for Employees on a probationary period of no more than 06 working days.
If trial jobs satisfy requirements, LCs must be signed between Employers and Employees at the end of the probationary period. First, Employers are obliged to comply with the time limit for informing Employees of their trial job results within the said time limit. On the part of Employees, the current labour law does not provide for a mandatory time limit for Employees to give feedback on the notice on satisfactory trial job results by Employers. In principle, Employees must only give their opinion as to whether they agree to enter into LCs with Employers no later than the last day of the probationary period. Assuming that Employers have notified Employees of their satisfactory probation results three days before the end of the probationary period, Employers could have to wait for Employees’ until end of the probationary period to reply and set the course for action at the end of the probationary period. Specifically as follows:
  • If Employees agrees to sign LCs, Employers and Employees will do the same;
  • Where Employees do not agree to enter into LCs, Employers should proceed with establishing an agreement on terminating the probationary period and Employees discontinue working to avoid the risks associated with the complaints by Employees against Employers due to their failure to sign LCs after the end of the probationary period.
However, if after the end of the probationary period, Employees still refuse to give their opinion as to whether they sign LCs but continue going to work, LCs are not yet signed in this case due to Employees’ fault, and the labour relationships between the parties are considered to be not established. A consultation with the expert of the DOLISA of Ho Chi Minh City reveals if Employers have sufficient evidence in terms of reminding, urging and pushing the two parties to sign LCs, Employers may request the competent local labour management agency and the court to settle the case on the basis of providing documents proving that Employees have failed to perform their obligation to reply to Employers at the end of their probationary period (such as notice of satisfactory probation result, reminding letter etc.), which underpins the termination of Employees’ LCs. [1] Article 27 Labor Code and Article 7 Decree 05/2015/NĐ-CP dated 12/01/2015