I am on probation for a new job, can I receive unemployment benefits?

Regarding this issue, based on Point b, Clause 1, Article 21 of Decree 28/2015/ND-CP (amended and supplemented by Decree 61/2020/ND-CP), employees on probation (who have not signed a labor contract) are not considered "employed".

Meanwhile, Article 53 of the 2013 Law on Employment stipulates the suspension, continuation, and termination of unemployment benefits as follows:

"1. A person receiving unemployment benefits shall have his/her unemployment benefits suspended if he/she fails to notify about his/her monthly job search as prescribed in Article 52 of this Law.

2. Employees whose unemployment benefits are suspended, if they still have time left to enjoy them according to the decision, will continue to receive unemployment benefits when they make monthly job search notifications as prescribed in Article 52 of this Law.

3. Unemployment benefit recipients will have their unemployment benefits terminated in the following cases:

a) Unemployment benefits expire;

b) Find a job;

c) Performing military service and police service;

d) Receive monthly pension;

d) After 02 times refusing to accept a job introduced by the employment service center where unemployment benefits are being received without a valid reason;

e) Failure to make monthly job search notifications as prescribed in Article 52 of this Law for 03 consecutive months;

g) Going abroad to settle down or work abroad under contract;

h) Studying for a period of 12 months or more;

i) Being administratively sanctioned for violating unemployment insurance laws;

k) Death;

l) Comply with the decision to apply measures of sending to a reformatory school, compulsory education facility, or compulsory drug rehabilitation facility;

m) Declared missing by the court;

n) Being detained; serving a prison sentence.

4. Employees whose unemployment benefits are terminated in the cases specified in Points b, c, h, l, m and n, Clause 3 of this Article shall have their unemployment insurance payment period reserved as a basis for calculating the unemployment benefits period for the next time when they meet the conditions specified in Article 49 of this Law.

The retention period is calculated by the total period of unemployment insurance payment minus the period of unemployment benefits received, according to the principle that each month of unemployment benefits received corresponds to 12 months of unemployment insurance payment.

Thus, if previously receiving unemployment benefits, during the probationary period (before signing a labor contract), the employee will still receive unemployment benefits according to regulations.

Pursuant to Clause 1, Article 27 of the 2019 Labor Code, at the end of the probationary period, the employer must notify the employee of the probationary results. In case the probationary period meets the requirements, the employer shall continue to perform the signed labor contract in the case of a probationary agreement in the labor contract or must sign a labor contract in the case of a probationary contract. In case the probationary period fails to meet the requirements, the signed labor contract or the probationary contract shall be terminated.

Thus, when the probationary period ends and the company does not sign a labor contract, the employee will continue to receive unemployment benefits according to regulations; if the company signs a labor contract, the employee will stop receiving unemployment benefits.

In case the employee is eligible to sign a labor contract but the parties postpone the signing of the labor contract so that the employee can continue to receive unemployment benefits, this is a violation of the law; and may be subject to penalties under Article 40 of Decree 12/2022/ND-CP.

Minh Hoa (t/h)

Source