Under the Labour Code 2012, an employer and an employee are permitted to agree about working on a probation basis (thử việc) and the rights and obligations of the parties during the probation period. In addition, before entering into the probation contract, the employer may request the employee to submit various information, including full name, age, sex, residential address educational standard, professional qualifications, health status, and other “information directly relevant to the employment agreement”. To select the qualified candidates, the employer may also agree with the employee on a verification for such information, which shall give the employer the right to terminate probation contract in case of unsuccessful verification results. While it is not entirely clear, there is a risk to the employer to be considered as illegal termination. This is because:
- The Labour Code 2012 only provides that an employer may terminate an employment contract during the probation period if the “probation work” (việc làm thử) is not satisfactory. There is no clear definition of “probation work”. Therefore, one can take the view that successful verification results may not be considered as probation work since there is no “work” involved here; and
- It is also not clear what information is considered as “information directly relevant to the employment agreement”. Accordingly, certain information requested by the employer (e.g. marriage, civil litigation,...) on its face may be not directly relevant to the work performed by the employee.
That said, such a view may be not reasonable because:
- Article 17.1 of the Labour Code 2012 requires the parties to an employment agreement to be honest with each other when entering into an employment contract. The employer employs the relevant employee based on the information provided by the employee. Therefore, if such information turns out to be incorrect during the probation period, then the employer should have the right to terminate the employment agreement; and
- Since the employer has full knowledge of his/her business, it is reasonable for the employer to has broad discretion in determining what information relating to the employment agreement must be provided accurately by the employee.
However, to mitigate the risks, the employer should provide in the employment contract that the successful verification results are one of the conditions for a satisfactory probation work.
This post is contributed by Nguyen Hoang Duong, a trainee at Venture North Law.