When probation ends unsuccessfully, many employers mishandle the termination: they apply notice periods meant for unilateral termination of labor contracts, or they forget to notify the probation result in writing. Both mistakes can trigger disputes and administrative fines. This article explains the lawful procedure for ending failed probation under Vietnam’s current Labor Code.
1. Applicable framework: the 2019 Labor Code (2026 consolidated version)
Probation is governed by Articles 24–27 of Labor Code No. 45/2019/QH14, consolidated in Consolidated Document 18/VBHN-VPQH 2026 (dated 12/02/2026) — still Vietnam’s current labor law framework. Penalties for probation violations follow Article 16 of Decree 283/2026/ND-CP (effective 10/9/2026, replacing Decree 12/2022/ND-CP).
2. Failed probation ends under Article 27 — not Article 36
The key legal point: Article 27(1) of the Labor Code provides that “where the probation does not meet requirements, the concluded labor contract or probation contract shall be terminated.” This is a standalone termination mechanism — the grounds and notice periods for unilateral termination of labor contracts (Articles 35 and 36) do not apply. No 30- or 45-day prior notice is required when ending failed probation.
Conversely, during probation, either party may cancel the probation or concluded labor contract without prior notice and without compensation (Article 27(2)).
3. Mandatory duty: notify the probation result
Article 27(1) obliges the employer to notify the probation result to the employee when probation ends. Best practice: notify in writing, stating the assessment outcome (pass/fail) and the basis measured against the criteria agreed in the probation contract.
Failure to notify is an administrative violation: a fine of VND 500,000–1,000,000 (Article 16(1)(b), Decree 283/2026/ND-CP; fines for organizations are doubled).
4. Four-step lawful procedure for ending failed probation
Step 1 — Assess. Measure actual performance against the assessment criteria agreed in the probation contract (or the probation terms in the labor contract). Specific, measurable criteria are the best defense against disputes.
Step 2 — Notify in writing. Issue a probation-result notice stating: the probation period, the failed assessment, the assessment basis, and termination of the probation/labor contract under Article 27(1).
Step 3 — Terminate and settle. Terminate the probation contract (or concluded labor contract) — no prior notice needed. Pay full probation wages (at least 85% of the job’s wage under Article 26) and any other agreed entitlements.
Step 4 — Close out. Return the employee’s documents (if held) and confirm social insurance participation records (if applicable).
5. Common violations and fines (Article 16, Decree 283/2026/ND-CP)
- VND 500,000–1,000,000: probation for labor contracts under 01 month (contrary to Article 24(3)); failure to notify the probation result at the end of probation.
- VND 2,000,000–5,000,000: requiring more than one probation for the same job; exceeding the agreed probation period or the caps in Article 25 (180/60/30 days and 06 working days depending on job group); probation wages below the agreed level or below 85% of the job’s wage; failure to conclude a labor contract when probation is passed (where a separate probation contract was signed).
- Remedial measures: mandatory payment of full wages for the job; mandatory conclusion of a labor contract with an employee who passed probation.
6. Recommendations for employers
- Write specific, measurable assessment criteria into the probation contract — the single most important protection in disputes.
- Always notify the result in writing and keep records, even for failed probation.
- Do not confuse “end of probation” (Article 27) with “unilateral termination of a labor contract” (Article 36) — the wrong mechanism means the wrong notice period and legal basis.
- Check probation duration against Article 25 caps and probation wages against the 85% floor.
FAQs
Q: Is 30 days’ notice required to end failed probation?
A: No. Article 27(1) of the Labor Code terminates the contract when probation is not passed; Articles 35/36 notice periods do not apply.
Q: Can an employee quit immediately during probation?
A: Yes. Article 27(2) allows either party to cancel during probation without prior notice or compensation.
Q: What if the employer forgets to notify the probation result?
A: It violates Article 16(1)(b) of Decree 283/2026/ND-CP: VND 500,000–1,000,000 (individuals), doubled for organizations.
Legal sources
- Labor Code No. 45/2019/QH14, Consolidated Document 18/VBHN-VPQH 2026 (Articles 24, 25, 26, 27).
- Decree 283/2026/ND-CP on administrative penalties in the labor sector (Article 16), effective 10/9/2026.
See more labor law articles by FLAT.
FLAT Law Firm advises employers on labor law: drafting probation contracts, building assessment criteria, and handling labor disputes. Contact us.
This article was prepared by the FLAW AI Legal Council and is pending QA Council review; it has not been reviewed by a licensed human lawyer. It is for general reference only and does not constitute legal advice for any specific case.
