Labor Law Q&A details

Chapter 5 Dismissals

Justification of Dismissing a Worker for Poor Performance

I received a warning for poor performance in my job evaluation results. Since then, I have also participated in the education program for poorly-performing workers. However, I failed the test after the program and received a notice of dismissal. Can an employer dismiss an employee because of poor performance?
It is a difficult matter to judge whether poor performance is a just cause for dismissal. In addition to disciplinary dismissal, which is conducted when an irregularity or violation of service regulations occurs, the court also recognizes general layoffs, which occur when there is a performance- or qualification-related reason that someone is not appropriate for the job. However, the judgment of whether a dismissal of a poorly-performing worker is justified tends to be very strict, and the burden of proof is also on the employer.
The legitimacy of dismissal on the basis of poor job performance is based on the assumption that the degree of performance or result is so low as to fall below the minimum level of job performance reasonably expected of a worker, after taking into account all aspects such as the status of the employee, salary, work experience, overall performance of other workers, management status of the company, and other circumstances. If there is a poor result to the extent that there is a risk of serious trouble or damage to business management due to lack of job performance or poor service record, and whether or not there is room for improvement even after issuing a warning, guidance, training, and appropriate relocation to correct the problem are also important criteria for determining justification.
In particular, whether or not the employer complied with a duty of care is also important. Because job placement in accordance with worker ability or aptitude is closely related to their education, training, and guidance, it is difficult for a dismissal for poor performance to be justified. However, if the employer complied with a duty of care in good faith but it can reasonably be seen that the worker’s ability or the aptitude will not improve in the near future, then the justification for dismissal may be recognized. On the other hand, if there is a lack of fairness and objectivity in the evaluation, and the content of the resulting education is actually designed to remove people, and not to help improve work capacity, and as a result, many workers in the program are fired, then the dismissal loses justification and becomes invalid.

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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