I. Principle

Even though an employee is hired under a probationary period, his dismissal shall be for a ‘justifiable reason’ in accordance with Article 27 of the Labor Standards Act. (Feb. 12, 1999, Seoul district court 98 gu 15558)
Even though an employee is hired under 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 identical requirements of the regular employee’s dismissal for the decision of whether he may accept or cancel the regular contract at the time of completing his probationary period or during a probationary period. Accordingly, it is possible to refuse to hire him because of negative evaluations relating to job eligibility. 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. (Jan. 11, 1994, Supreme Court 92 da 44695; Sep. 8, 1987, Supreme Court 87 daka 555)

Justification for dismissal of the probationary employee during a probationary period (Aug. 4, 2006, Labor Standards Team-4040)
The employer shall not dismiss the 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 the period for deciding whether or not to offer formal employment for the new employee by evaluating his ability to be able to fulfill his duties. Accordingly, the scope of justifiable reasons for the new employee’s dismissal is wider than that for a regular employee.

The employer shall not take disciplinary action, such as dismissal, toward the probationary employee without a justifiable reason, however, the range of justifications is wider compared to the regular employee. (Nov. 12, 1990, Kungi 01254-15636)
The employer shall not take disciplinary action, such as dismissal, toward the probationary employee without a justifiable reason; however, the range of justifications is wider compared to the regular employee. Provided, that the probationary period shall be a reasonable period in consideration of the job characteristics. If the period is extended unfairly, its extended probationary period is not effective in the view of social rationality: in cases where the probationary period exceeds 3 months, the advance notice of dismissal stipulated in Article 27 (2) of the LSA shall apply.


II. Justifiable Dismissal

It is justifiable to refuse formal employment of an employee under a probationary period on account of poor performance, negligence of duty, non-cooperative relationships with other coworkers, etc. (May 22, 2005, Seoul District Court 2004 guhap 30122)
The employee joined the company as a probationary employee with a six-month probationary period. Since the probationary employee showed remarkably poor performance compared to other probationary employees, was insincere at work, and could not get along with coworkers, superiors or other workers of related companies, the team leader gave him low evaluation rating. The employer made a decision to refuse to hire the probationary employee because of the low evaluation rating. Based on circumstances, the refusal of regular employment cannot be seen as an unfair dismissal.

It is justifiable to refuse to hire a probationary employee. (Jul. 2, 2001, NLRC 2001 Buhae 199)
The company estimated that continuous employment was unsuitable and refused to hire an employee applying the probationary period stipulated in the Rules of Employment. The reason was that the hotel manager (a probationary employee) on duty spoke violently to and threatened the managing director who was checking attendance. In the view of the purpose of a probationary period, the dismissal shall be objective, reasonable and justifiable according to the socially accepted idea.

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. (Jun 8, 2001, NLRC 2001 Buhae 144)
The probationary employee did not describe in his resume his experience as a vice-training/PR chief of 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 career in his resume and negligence of duty.

It is justifiable to dismiss a probationary employee on account of negligence of duty. (Aug. 11, 2000, NLRC 2000 Buhae 282)
The probationary employee received complains from customers because there were more dishes or less dishes available due to his miscalculation for the necessary amount of dishes. Furthermore, he resisted his supervisor’s warnings and disturbed the company’s order. Therefore, the company dismissed him because of negligence of duty, which can be seen as justifiable fulfillment of the employer’s personnel right.

It is justifiable fulfillment of the personnel right when the employer dismissed a probationary employee on account of negligence of duty. (Jan. 21, 2000, NLRC 99 Buhae 626)
It is justifiable fulfillment of the personnel right for the employer to dismiss a probationary taxi driver in the probationary period because of indulgence of duty when he quarreled over the superior’s directions and was late for work.

Even though the employer made a comprehensive personnel evaluation with some subjective aspects during a probationary period, which became a reason for dismissal, it would not be unfair enough to deny the whole evaluation result. (Apr. 8, 1999, NLRC 99 Buhae 64)

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

It is justifiable to dismiss a probationary employee without disciplinary process on account of negligence of duty in accordance with the Rules of Employment. (Mar. 16, 1998, NLRC 97 Buhae 329)
For the employee in the middle of a three month probation period, it is justifiable to dismiss him without disciplinary process for his negligence of duty shown during the period.

III. Unfair Dismissal

Despite the employee being under a probationary period, it is unfair to dismiss him on account of the lack of job eligibility when he did not receive any customer orders within a short period of time (i.e., only two months). (Jan. 16, 2004, Seoul District Court 2003 Kahap 54613)
According to the company’s personnel regulations, newly hired employees shall have a two-month probationary period and the company can cancel the employment for the probationary employees because of job ability, qualifications, and other job eligibility issues during a probationary period.
The employee was hired with an expectation to receive orders from 000 company and its subsidiary, but he did not have any customer orders and even did not make an effort to attract any sales order. Therefore, the company cancel