Ⅰ. Principle

Even though an employee is hired with the requirement to undergo a probationary period, his dismissal shall be for a ‘justifiable reason’ in accordance with Article 27 of the Labor Standards Act.
Even though an employee is hired with the requirement to undergo a probationary period, his dismissal shall be for a ‘justifiable reason’ in accordance with Article 27 of the Labor Standards Act, because his labor contract was established just like that of a non-probationary employee. Provided, that the probationary system is designed to set a probationary period in order to judge whether or not the probationary employee shows competence for the job before confirming regular employment. The employer does not have to apply the same requirements for a regular employee’s dismissal when deciding whether he will continue or cancel the regular contract at the time the probationary period is over, or during the probationary period. Accordingly, it is possible to refuse to hire him because of negative evaluations relating to ability to do the job. It is also possible to dismiss him or to refuse regular employment when there is a justifiable reason for dismissal. Under this view, the probationary period plays a role in easing restrictions for dismissal.

1. Justification for dismissal of a probationary employee during a probationary period
The employer shall not dismiss an employee without a justifiable reason in accordance with Article 30 of the Labor Standards Act. Whether or not there is a justifiable reason for dismissal shall be estimated on a case by case basis according to whether there is a special reason why the employer cannot continue to maintain employment of the employee. However, the probationary period shall be a period for deciding whether or not to offer formal employment for the new employee after evaluating his/her abilities to be able to fulfill the required duties. Accordingly, the scope of justifiable reasons for the new employee’s dismissal is wider than that for a regular employee.

2. The employer shall not take disciplinary action, such as dismissal, toward a probationary employee without justifiable reason. However, the range of justifiable reasons is wider than for a regular employee.
The employer shall not take disciplinary action, such as dismissal, toward a probationary employee without justifiable reason. However, the range of justifiable reasons is wider than for a regular employee. Provided, that the probationary period shall be a reasonable period in consideration of the job characteristics. If the period is extended unfairly, the extension is not effective in view of social acceptability: in cases where the probationary period exceeds 3 months, the requirement to give advance notice of dismissal stipulated in Article 27(2) of the LSA shall apply.

Ⅱ. Justifiable Dismissal

1. It is justifiable to refuse formal employment to an employee in a probationary period on account of poor performance, negligence of duty, non-cooperative relationships with other coworkers, etc.
A certain employee was hired on a six-month probationary basis by a certain company. Since the probationary employee displayed remarkably poor performance compared to other probationary employees, was insincere at work, and could not get along with his coworkers, superiors or workers from related companies, the team leader gave him a low evaluation rating. The employer decided against hiring the probationary employee because of the low evaluation rating. Based on these circumstances, the refusal of regular employment cannot be seen as unfair dismissal.

2. It is justifiable to refuse to hire a probationary employee.
A certain company estimated that continuous employment was unsuitable and refused to hire a probationary employee during the probationary period stipulated in the rules of employment. The reason was that, while on duty, the probationary employee(a hotel manager) spoke violently to and threatened the managing director who was checking attendance. In view of the purpose of a probationary period, his dismissal is objective, reasonable and justifiable according to socially accepted ideas.

3. It is justifiable to refuse to hire a probationary employee who did not describe his key role in a district labor union in his resume.
A certain probationary employee did not describe in his resume his experience as a vice-training/PR chief of the Metal Workers Union in Seoul - East Area when he submitted a job application, and so the company could not evaluate his character comprehensively. It was considered justifiable for the company to refuse to hire him because of the omission of his previous union experience from his resume and negligence of duty.

4. It is justifiable to dismiss a probationary employee on account of negligence of duty.
A certain probationary employee received complaints from customers because there were too much or too little food available due to his miscalculation of the necessary amount. Furthermore, he resisted his supervisor’s warnings and disturbed company order. Therefore, the company’s dismissal of him for his negligence of duty was seen as justifiable exercise of the employer’s personnel rights.
5. It is justifiable exercise of personnel rights if an employer dismisses a probationary employee on account of negligence of duty.
It is justifiable exercise of personnel rights for an employer to dismiss a taxi driver during his probationary period for neglecting his duties(late for work) and quarreling with his superior’s instructions.

6. Even though the employer made a comprehensive personnel evaluation with some subjective aspects during a probationary period, which became a reason for dismissal, it is not unfair enough to deny the entire results of the evaluation.
Even though the employer made a comprehensive personnel evaluation with some subjective aspects during a probationary period, which became a reason for dismissal, it is not unfair enough to deny the entire results of the evaluation. Because the employee cannot verify that the company manipulated the results afterwards, his dismissal is justifiable.

7. It is justifiable to dismiss a probationary employee without disciplinary process on account of negligence of duty in accordance with the rules of employment.
It is justifiable to dismiss an employee in the middle of a three-month probation period without disciplinary process for neglecting his duties during that period.


Ⅲ. Unfair Dismissal

1. Despite the employee being under a probationary period, it is unfair to dismiss him on account of a lack of job skills when he did not receive any customer orders within a short period of time (i.e., only two months).
According to a certain company’s personnel regulations, new employees have a two-month probationary period, during which a company can cancel employment for a lack of skill with the job, insufficient qualifications, and other job eligibility issues during a probationary period. A certain employee was hired with the expectations of receiving orders from 000 company and its subsidiary, but this did not happen, nor was any effort made on his part to attract orders. Therefore, the company cancelled his employment due to poor job performance and in accordance with its regulations. Despite the employee having a probationary period, it is hard to conclude he lacked the job skills needed simply by the fact that he did not receive any sales orders within a short period of time(i.e., about two months). Verifiable evidence that would support this is hard to come by sufficiently to justify his dismissal. Accordingly, this dismissal was deemed null and void because it was implemented without justifiable reason.

2. As long as a probationary evaluation was not objective or reasonable enough to refuse regular employment, such a refusal amounts to unfair dismissal that abuses the right of the employer’s reserved cancellation.
A certain company had not cancelled the employment of any probationary employees since its foundation. Certain probationary employees had not been informed regarding the criteria and methods for evaluating their work, and the probationary evaluation system(which used an evaluation table) was not introduced until the last month of the probationary period(i.e., June 7, 2001). This made it difficult to judge whether the probationary employees had been evaluated continuously during their probationary period. In considering all those aforementioned conditions, even though they received a ‘C’, low enough to cancel employment, this was not judged objective or reasonable enough to refuse regular employment on account of the negative evaluation of their occupational and job skills according to socially accepted ideas. Therefore, the employer’s refusal of regular employment amounted to unfair dismissal that abused the right of reserved cancellation.

3. If their labor contracts do not contain a clear article that applies a probationary period, employees shall be regarded as regularly employed. Cancellation of this employee’s labor contract is not simply contract termination, but dismissal.
Unless there is a clear article that applies a probationary period in a labor contract between employer and employee, employees shall be regarded as regularly employed and not probationary. Dismissal of an employee shall be evaluated by whether or not there is a justifiable reason for dismissal of a regular employee.

4. It is unjustifiable to cancel employment immediately because of errors in the employment application document without giving an opportunity to rectify those errors and without evaluating job skills and attitude during a probationary period.
The probationary work system is to set a probationary period for the purpose of estimating an employee’s vocational skills in the process of regular employment before finalizing the labor contract. Therefore, because this is a system designed to set aside a certain period of time to decide whether or continue employment, it serves to ease dismissal restrictions. However, despite being a probationary employee whose contract period is fixed for a certain period of time, if the employee is hired just like regular employees, his or her dismissal shall require justifiable reason in accordance with Article 30 of the Labor Standards Act.

5. Where there is no probationary period stipulated, dismissing an employee for abstract reasons is an abuse of the right to manage personnel.
A certain employer hired an experienced employee through an online advertisement. Although the employer informed the employee of the three-month probationary period verbally in the job interview, there was no evidence to verify this. The employer said that the employee had been dismissed due to a lack of foreign language ability and interpreting skills and poor ability to form working relationships. As these judgements were based subjectively on the employer’s views, it is an abuse of the right to manage personnel to dismiss the employee where the existence of a probationary period is in doubt.

6. Despite a justifiable reason for dismissal, it is unfair to cancel employment unilaterally without a disciplinary process for the employee who finishes his or her probationary period.
Under the company’s collective bargaining agreement(CBA), employee probationary periods were to expire in six months despite the absence of a company regulation regarding this, unless there is special agreement between the two related parties. As a probationary temporary driver, the company argued that the CBA did not apply to a certain employee, who was dismissed due to a car accident occurring after the probationary period had ended and the occurrence of unexcused absences from work. Within the company, the CBA applied to a majority of employees holding the same kind of job, so an employee who has already passed a probationary period shall be entitled to the disciplinary process stipulated in the CBA.

7. Justification for refusing regular employment of a contracted employee subject to a probationary period.
The educational foundation, Chun Hae School, refused regular employment to some probationary employees due to negligence of duty, violation of directions, and poor personnel evaluations that disqualified them. However, the employer did not provide concrete data showing that these probationary employees had not followed their superiors’ instructions. Despite whether or not the personnel ratings were reasonable, the employer did not have relevant regulations in place nor was there evidence that personnel ratings had been given objectively and fairly. At a similar university, probationary employees continued to work after expiry of their probationary periods, which gave them the expectation that their employment would continue. It is unfair dismissal to terminate a labor contract simply due to expiry of a contract period for probationary employees without objective and justifiable reasons.

8. Justification for refusing regular employment of a probationary employee.
A certain employer dismissed(refused to grant regular employment) to probationary employees(tour bus drivers) for physically fighting with their colleagues after drinking. However, the violent incident occurred outside the workplace and after work. After the incident, the parties involved reconciled amicably. Accordingly, the employer’s refusal to grant regular employment to the probationary employees was an abuse of the right to manage personnel and was considered unfair dismissal.

9. The company confirmed a position, salary table and announced the personnel orders for a newly hired employee. However, if the company does not describe a probationary period in the labor contract, he/she shall be considered a regular employee.
When hiring a new employee on January 26, 1998, a certain employer confirmed position and salary table(4th level 2 ho), and then assigned him to the general affairs team in a personnel order, which means he was hired as a regular employee. Then, the employer dismissed him for lacking job skills, but considering this was his first job after graduation, this amounted to unfair dismissal and an abuse of the employer’s personnel management right.