Tiếng ViệtAfter the probationary period ends, but the employee continues to work, but the company does not sign an official labor contract, how will this labor relationship be determined?
Currently, according to Article 20 of the Labor Code 2019, when the labor contract specified at point b, clause 1 of this Article (meaning the definite-term labor contract and the indefinite-term labor contract) expires, If the employee continues to work, the following procedures shall be followed:
a) Within 30 days from the date of expiration of the labor contract, the two parties must sign a new labor contract; during the time when a new labor contract has not been signed, the rights, obligations and interests of both parties shall be performed according to the signed contract;
b) If the time limit of 30 days from the date of expiration of the labor contract, but the two parties do not sign a new labor contract, the contract entered into under the provisions of point b, clause 1 of this Article becomes a labor contract. indefinite term;
c) In case the two parties sign a new labor contract which is a definite-term labor contract, it is only allowed to sign one more time, after that, if the employee continues to work, he/she must sign a labor contract. for an indefinite term, except for the labor contract for a person hired to act as a director in a state-owned enterprise and the cases specified in Clause 1, Article 149, Clause 2, Article 151, and Clause 4, Article 177 of this Code.
Thus, within 30 days from the date of expiration of the labor contract, the two parties must sign a new labor contract. If after the expiration of 30 days from the date of expiration of the labor contract, the two parties do not sign a new labor contract, then: The definite-term labor contract will become an indefinite-term labor contract.
However, for the Probationary Contract, there is currently no stipulation that after the probationary period ends, the employer who does not sign a formal labor contract and the employee continues to work will be considered as an important consideration. Labor contract system or not and if so, what type of contract?
We can refer to Case Law No. 20/2018/AL on the establishment of labor contract relations after the probationary period of the Supreme People’s Court passed on October 17, 2018 and announced under Decision No. 269/QD-CA dated November 6, 2018 of the Chief Justice of the Supreme People’s Court.
In addition, many other judgments on unilaterally terminating disputes have taken Case Law No. 20/2018/AL as a basis for determining the labor relationship in case the probationary period ends and still works even though the probationary period ends. no contract.
Accordingly, after the probationary period ends, if the employee continues to work, that relationship has been established as a labor contract relationship even though an official labor contract has not been signed. It can be explained as follows: At the end of the probationary period, the employee continues to work, the employer has no opinion, still agrees to let the employee go to work, with the agreement and approval of the employee. both sides in this case. Therefore, whether a labor contract is signed or not, this labor relationship has been established.
Therefore, this labor relationship is defined as a contract with a definite term of 12 – 36 months or an indefinite term contract. This point is not regulated by the law, but can be applied from case law, if the company signs or has provisions in the internal labor regulations; collective labor agreement on what type of contract will be signed with the employee after the probationary period ends, this labor relationship will be corresponding to that type of contract.
Therefore, even though the probationary period ends and there is no contract, the termination of the labor relationship still needs to comply with the official labor contract to avoid risks and disputes between the parties.
