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The probationary regime for employees returning to work at the old company in Vietnam

Although rare, however, there are a few cases where employees, even after leaving the company for a while, return to work at the same company. This may be because the employees themselves want to return or, for talented individuals, it is the business owner who will invite them back to work. In some cases, even though they used to work at the old company, when they return, the business will ask them to take a probationary period. So, is this correct according to the provisions of Vietnamese law?

In the working environment, there are many difficult cases that force employees to postpone their work and take a relatively long time off.

The most typical example of this is when female employees have to take maternity leave and for some reason have to take more than 6 months of normal maternity leave according to the Labor Law. After that, they take a break and can not return to the company because the law on social insurance only allows a maximum leave of 6 months and if the period is too long (beyond the acceptable time frame of the business), the business has no other measures but to exclude the employee from the company.

However, after a while, employees want to return to work at the same position and if the employer agrees, will they still need to take a probationary period?

The probationary period for ex-employees

If employees return to work at the old company, they need to know that Vietnamese law does not have a division between new and old employees.

Accordingly, if an employee returns to work, they will be treated like a new employee coming to the business for the first time.

If not from a legal perspective, this is also completely understandable, because during the time employees leave, they may not have fully updated the necessary knowledge of the old job, as well as the new elements, new responsibilities, etc. of said position.

Accordingly, if the conditions and standards set by the company are met, the employee will be accepted and signed a new labor contract.

The previous labor contract will not be valid this time around and for some companies with seniority schemes, it is highly likely that they will also not take into account the length of the employee’s employment under the previous labor contract (However, this depends on the relationship between the employee and the business as well as the individual policies of each business).

It is rare for a company to completely trust an employee when hiring again, no matter how well the employee has achieved the previous time.

Thus, if the old company asks for a probationary period, the employee will have to try again from the beginning.

According to Vietnamese Labor Law, the probationary period in this case as well as in all other cases will be divided into a maximum of 180 days, 60 days, 30 days, and 6 days.

However, the parties can completely agree on a probationary period shorter than the time prescribed by the law if the employer sees that the employee can quickly grasp the job. This factor is often applied to the case of employees returning to the old company because they already have a lot of experience with that position.

In addition, when on probation, the employee will have to be paid at least 85% of the salary of the official job.

For the cases where the employees have a lot of experience and good qualifications, many companies pay 100% of the salary for the probationary workers.

It should be noted that minimum wages or time frames are only meant to protect workers’ interests. If employees have received the trust of the business and have a good working relationship with colleagues and the business, they can completely negotiate favorable terms with them based on trust and harmonious spirit.

ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.

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