Ⅰ. Principle

1. Even though an employee is hired under a probationary period, his dismissal shall be for ‘justifiable reason’ in accordance with Article 27 of the Labor Standards Act.
Even though an employee is hired under a probationary period, his dismissal shall be for ‘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. 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 requirements to cancel a decision to hire an employee upon completion of the probationary period are not the same as to dismiss a regular employee. 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.

2. Justification for dismissal of the probationary employee during a probationary period
Employers shall not dismiss employees without justifiable reason in accordance with Article 30 of the Labor Standards Act. Whether or not justifiable reason exists for dismissal shall be estimated on a case by case basis. However, the probationary period is for deciding whether or not to offer formal employment to the new employee after evaluating his ability to be able to fulfill his duties. Accordingly, the scope of justifiable reasons for dismissal of a new employee is wider than that for a regular employee.

3. The employer shall not take disciplinary action, such as dismissal, toward probationary employees without justifiable reason, however, the range of justifications is wider than for regular employees.
The employer shall not take disciplinary action, such as dismissal, toward probationary employees without justifiable reason; however, the range of justifications is wider than for regular employees. 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 the view of social norms: 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

1. 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.
A certain employee was hired by a company and was to undergo 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 a low evaluation. The employer decided to refuse to hire the probationary employee because of the low evaluation rating. Based on the 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 an employee after a probationary period stipulated in the rules of employment. The reason was that while on duty, the probationary employee (serving as hotel manager) spoke violently to and threatened the managing director who was checking attendance. In view of the purpose of a probationary period, the dismissal shall be 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.
The probationary employee did not describe in his resume his experience as a vice-training/PR chief of Metal Workers Union for Seoul - East 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.

4. It is justifiable to dismiss a probationary employee on account of negligence of duty.
A certain probationary employee received complaints from customers due to his miscalculations of the amount of dishes needed. Furthermore, he resisted his supervisor’s warnings and disturbed the company’s order. Therefore, the company dismissed him for negligence of duty, which can be seen as justifiable fulfillment of the employer’s personnel right.

5. It is justifiable fulfillment of the personnel right when the employer dismisses a probationary employee on account of negligence of duty.
It is justifiable fulfillment of the personnel right for the employer to dismiss a probationary taxi driver during the probationary period for negligence of duty when he quarreled with his supervisor over instructions and was late for work.

6. Even though the employer made a comprehensive personnel evaluation with some subjective aspects during a probationary period, which became reason for dismissal, they were not unfair enough to deny the whole evaluation result.
Even though a certain employer included in a comprehensive personnel evaluation, during a probationary period, some subjective aspects, which became a reason for dismissal, these subjective aspects were not unfair enough to deny the whole evaluation result. Because the employee cannot verify that the company manipulated the evaluation result 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 negligence of duty shown during the 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 eligibility when he did not receive any customer orders within a short period of time (i.e., only two months).
According to the company’s personnel regulations, newly hired employees shall have a two-month probationary period during which the company can cancel the employment in relation to job ability, qualifications, and other job eligibility issues. The employee was hired with an expectation to receive orders from 000 company and its subsidiary, but this did not happen and he did not make any effort to attract any. Therefore, the company cancelled the probationary employment due to the poor job performance in accordance with its regulations. Despite the employee being in a probationary period, it is hard to determine his job eligibility by the fact that he did not receive any sales orders within a short period of time (i.e., about two months). There is also no verification evidence to justify his dismissal. Accordingly, this dismissal is null and void because it was implemented without justifiable reason.

2. If the results of a probationary evaluation were not objectively negative or reasonable so as to refuse regular employment, the refusal of employment is an unfair dismissal that abuses the right of reserved cancellation.
A certain company has not cancelled the employment of any probationary employee since its foundation. Certain probationary employees had not been informed of the criteria or methods for evaluating their work. Furthermore, the probationary evaluation system measured by the evaluation table was not introduced until the last month of the probationary period (i.e., June 7, 2001), and so it is difficult to judge whether the probationary employees had been evaluated continuously during their probationary period. In consideration of these realities, even though they received a ‘C’ grade—low enough to cancel employment—this was not judged objective or reasonable enough to refuse regular employment according to socially accepted ideas. Therefore, the employer’s refusal of regular employment was unfair dismissal that abused the right of reserved cancellation.
3. As long as the labor contract does not contain a clear article that applies a probationary period, the employee shall be regarded as regularly employed, and cancellation of his labor contract is not termination of the contract, but dismissal of the employee.
Unless there is a clear article that applies a probationary period in a labor contract between employer and employee, the employee shall be regarded as regularly employed and not on probation. Dismissal of the employee concerned shall be evaluated by whether or not there is 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 opportunity to rectify the errors and without evaluation of job ability and attitude during a probationary period.
The probationary work system involves setting a probationary period for the purpose of estimating an employee’s vocational ability in the process of regular employment before confirming the labor contract. Therefore, because a certain period of time is set aside for making such a decision, it serves to ease dismissal restrictions. However, despite the probationary employee having a fixed-term contract, the employee was hired just like a regular employee and his dismissal shall require ‘justifiable reason’ in accordance with Article 30 of the Labor Standards Act.

5. Where there is no probationary period stipulated, it is an abuse of the right of personnel to dismiss an employee for abstract reasons.
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 it. The employer said that the employee was dismissed due to the employer’s subjective judgment that the employee lacked sufficient foreign language and interpretation skill and was largely unable to adapt to the work relations and to the organization. In the disciplinary process, it is an abuse of the right of personnel management to dismiss an employee for abstract reasons 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 an employee who passes a probationary period.
Under the company’s collective bargaining agreement (CBA), the employee’s probationary period shall expire in six months despite the absence of a company regulation regarding same unless there is special agreement between the parties. As a temporary probationary driver, the company argued that the CBA did not apply to the employee and was dismissed for having a car accident after the probationary period and unexcused absences from work. At the company, the CBA applies to a majority of employees with the same kind of job, so an employee who has passed a probationary period shall have the benefit of the disciplinary process stipulated by the CBA.
7. Refusing regular employment for a contracted employee under a probationary period.
Chun Hae School, an educational foundation, refused regular employment for probationary employees due to their negligence of duty, violation of directions, and evaluation as unqualified persons based on their personnel ratings. However, the employer did not provide concrete data showing the probationary employees failing to follow their superiors’ instruction. Despite whether or not the personnel ratings were reasonable, the employer did not have relevant regulations in place and there was no evidence that personnel ratings had been taken objectively and fairly. At an identical university, probationary employees have continued to work after expiry of their probationary period, which gave these particular probationary employees the expectation of being hired continuously. It is unfair dismissal for the employer to terminate the labor contract for probationary employees simply due to expiry of the contract period without objective and justifiable reasons.

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

9. The company confirmed a position, salary table and announced personnel orders for a new employee. However, if the company did not describe a probationary period in the labor contract, he/she shall be considered a regular employee right away.
When hiring a new employee on January 26, 1998, the employer confirmed position and salary table (4th level – 2 ho), and then assigned him to a department (general affairs team) through personnel orders, which means he was hired as a regular employee. Then, the employer dismissed him for insufficient job ability, but in consideration that the job was his first work experience after graduation, it is unfair dismissal as it was a serious abuse of the employer’s personnel management right.
Chapter 3. Non-Compete Agreements

Recently, there have been many cases in which an employee skilled with the core technologies of a small and medium-sized enterprise (SME) has moved to a large company, and the advanced technologies developed by the SME over several years can easily be stolen. To avoid this, SMEs may require professional engineers to sign non-compete agreements to reduce the chance they will end up working for the SME’s competitors. However, countering this is the freedom that workers have to choose jobs that provide better working environments.
The non-compete agreement seeks to prevent workers with knowledge of the company's unique trade secrets or important information related to business from transferring to that employer’s competitors and damaging the employer. This non-compete agreement is of limited effect due to the fact that it may violate the right to work and freedom of occupation, which are the basic rights of the people under the constitution. Since the employer's unique trade secrets are valuable and worth protecting, the non-compete agreement is valid when certain requirements are met: the company's expertise, production method, or business activities must be trade secrets with protective value, and the company must have made sufficient efforts to keep them secret. When these conditions are satisfied, a company’s technology is recognized as a trade secret, and the non-compete agreement with the employee remains legitimate.
In this article, I would like to explain the requirements for a non-compete agreement to be effective, the details of related laws and standard guides, and related labor cases.