(1) Justification of Dismissal during a Probationary Period
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 for a regular employee’s dismissal regarding 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 a probationary employee during a probationary period (Aug. 4, 2006, Labor Standards Team-4040)
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 relations with 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 than for regular employees. (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 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, 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 (related cases)

It is justifiable to refuse formal employment of an employee under a probationary period on account of poor performance, negligence of duty, non-cooperative relations 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 a low evaluation rating. The employer made a decision 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 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 view of the purpose of a probationary period, such dismissal was viewed as objective, reasonable and justifiable according to socially accepted ideas.

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 complaints from customers because there was too much food or too little available due to his miscalculation of the necessary amount. 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 dismisses 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 negligence 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 was not 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 was 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 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 an 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 a 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, new employees shall have a two-month probationary period during which the company can cancel employment because of poor job ability, insufficient qualifications, or other job eligibility issues. 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 did not make any effort to attract sales. Therefore, the company cancelled the probationary employment due to the poor job performance in accordance with its regulations. Despite the employee working in a probationary period, it is hard to conclude 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 verifying evidence to justify his dismissal. Accordingly, this dismissal is null and void because it was implemented without a justifiable reason.

As long as the result of probationary evaluation did not have an objective or reasonable cause as much as to refuse regular employment, the refusal of employment is an unfair dismissal that abuses the right of reserved cancellation. (Aug. 27, 2002, Administrative Court 2002 guhap 7210)
The company has not cancelled the employment of any probationary employees since its foundation. The probationary employees had not been informed regarding the criteria and 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 a probationary period. In considering all these conditions, even though they received a ‘C’ grade, low enough to cancel employment, this was not judged objective or reasonable enough to refuse regular employment on account of a negative evaluation of their occupational ability and job eligibility according to socially accepted ideas. Therefore, the employer’s refusal of regular employment was unfair dismissal that abused the right of reserved cancellation.
As the labor contract did not contain a clear article that applies a probationary period, the employee shall be regarded as a regularly employee, and cancellation of his labor contract is not contract termination, but dismissal of the employee. (Nov. 12, 1999, Supreme Court 99 da 30473)
As there was no clear article to apply a probationary period in the labor contract between the employer and employee, the employer shall be regarded as a regularly employed employee and not a probationary employee. The dismissal of the employee concerned shall be evaluated by whether or not there is a justifiable reason for dismissal of a regular employee.

It is unjustifiable to cancel employment immediately because of errors in the employment application document without giving an opportunity to rectify the errors and without an evaluation of job ability and attitude during a probationary period. (Aug. 22, 2002, LRC 2002 Buhae 104)
The probationary work system is to set a probationary period for the purpose of estimating the employee’s vocational ability in the process of regular employment before making a confirmative labor contract. Therefore, because this is a system to reserve a certain period of time for whether or not to make a confirmative labor contract, it eases dismissal restrictions. However, despite being a probationary employee whose contract period was fixed, the employee was hired just like a regular employee and his dismissal shall require a ‘justifiable reason’ in accordance with Article 30 of the Labor Standards Act.

Where there is no probationary period stipulated, it is to an abuse of the right of personnel management to dismiss an employee for an abstract reason. (Jul 25, 2002, NLRC 2002 Buhae 288)
The 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 a lack of foreign language ability and interpretation skill and the low ability to form relations at work and in the organization based on the employer’s subjective judgment. In the disciplinary process, it is an abuse of the right of personnel to dismiss an employee for an abstract reason where the existence of a probationary period is in doubt.

Despite a justifiable reason for dismissal, it is unfair to cancel employment unilaterally without a disciplinary process for an employee who passed a probationary period. (Aug. 14, 2001, LRC 2001 Buhae 73)
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 the same unless there is special agreement between the parties. As a temporary probationary driver, the company argued that the employee did not fall under the CBA and was dismissed due to a car accident occurring 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, and so the disciplinary process stipulated in the CBA shall apply to an employee who has already passed a probationary period.

Justification of refusing regular employment for a contracted employee under a probationary period. (May 14, 2001, NLRC 2001 Buhae 32, 33)
The educational foundation, Chun Hae School, refused regular employment with 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 that the probationary employees did not follow their superiors’ directions. 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. In an identical university, probationary employees have continued to work after expiry of the probationary period, which gave them an expectation to be hired continuously. It is unfair dismissal for the employer to terminate the labor contract due to expiry of a contract period for probationary employees without objective and justifiable reasons.

No justification for refusing regular employment for a probationary employee. (Mar. 21, 2001, NLRC 2000 Buhae 574)
The employer dismissed (refused to grant regular employment to) probationary employees (tour bus drivers) because they fought with other colleagues after drinking and caused a violent incident. However, the violent incident occurred outside the workplace and after work. After this incident, 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 and was considered an unfair dismissal.

The company confirmed a position, salary table and announced the personnel order for a new employee. However, if the company did not describe a probationary period in the labor contract, he/she shall be admitted as a regular employee. (Nov. 2, 1998, NLRC 98 Buhae 427)
When hiring a new employee on January 26, 1998, the employer confirmed a position and salary table (4th level – 2 ho), and then assigned him to a department (general affairs team) in the personnel order, which means he was hired as a regular employee. Then, the employer dismissed him on account of a lack of job ability, but in consideration that this was his first job after graduation, it was deemed an unfair dismissal that abused the employer’s personnel right.


[Dimissal of Probationary Employee without written Notice]

In March 2014, I received an inquiry regarding a case of dismissal from Company X (hereinafter referred to as “the Company”) which is involved in the furniture wholesale business. The Company hired Employee Y (herein referred to as “the Employee”) as a translator and assigned her translation duties, but the Employee was unable to carry out her duties well, so the Company terminated the employment contract within the probationary employment period of three months. The Company did not issue a written dismissal notice during the final meeting with the Employee, but simply obtained her signature on the evaluation sheet for probationary employees. Two months after her termination, the Employee filed an application for remedy for unfair dismissal. Considering that the Employee had passed a tough interview process and had worked hard during the probationary period, the Employee claimed that the Company’s unilateral termination of her employment was unfair. For its part, the Company claimed that it had to terminate the employment contract after evaluating the Employee’s performance during the probationary period as the Employee’s translation skills were remarkably lower than expected or desired.

Major points of dispute in this dismissal of a probationary employee were: 1) whether the fact that the Company failed to issue a written dismissal notice was acceptable, and 2) whether the Employee’s signature on her evaluation sheet can be regarded as agreement with termination of her employment. In cases where an employee’s signature on an evaluation sheet has not been regarded as agreement with termination of employment, termination has been considered unfair dismissal in violation of required dismissal procedures.

Here, I would like to review the claims of each party, the Labor Commission’s judgment, and then the case itself.

I. Claims of both Parties regarding the Dismissal of a Probationary Employee

1. The Employee’s Claim:
The Employee applied for an open position through an employment agency, had three separate job interviews and also took a three-hour translation test before being awarded the job in early October, and was assigned as a translator with the translation team on October 16, 2013. The Employee had worked very hard with no instances of lateness or absenteeism since she started with the Company. The Employee had official language qualification scores of 104 (TOEFL) and 980 (TOEIC) as well as a Master’s degree from one of the top-ranking US universities, and had worked part-time as a translator for three different broadcasting companies.

The Employee had never made any agreement with the Company concerning termination of employment. The Company notified the Employee of the termination during the probationary period, but this dismissal during the probationary period should require an objective and rational reason to qualify as justifiable dismissal. Without such qualification, this action by the Company must be considered as unfair dismissal. The Company’s dismissal is not justifiable due to the missing legal requirements such as a reason for dismissal, the severity of disciplinary punishment, and the dismissal process itself.

2. The Employer’s Claim:

The Company rescinded the offer of employment during the probationary period due to the Employee’s remarkably insufficient translation ability and relatively low-quality translations. As these results could be deemed reason for termination of employment in terms of not meeting reasonable standards, this could not be considered abuse of the employer’s right to revoke an offer of employment. On the other hand, as this employee herself confirmed when she signed the probation evaluation sheet, this verified that both parties mutually agreed on the termination of employment.

When the Employee began her probationary period on October 16, 2013, she was assigned to translation duties, which involved the translation of English-language documents into Korean. Her translations did not meet the expected basic quality, and her translation efforts took twice the time of her colleagues. As her work contained so many translation errors, liberal translations with different meanings drastically from the original material, in addition to spelling mistakes, the translation team manager had to frequently re-translate her finished work. On December 4, 2013, the translation team manager implemented an intermediate evaluation of the Employee’s performance on four items: 1) knowledge of the job; 2) work-performance quality; 3) cooperation with colleagues; and 4) communication skills. Except for cooperation with colleagues, she received the lowest evaluation in each category (‘requires considerable improvement’). The Employee signed her agreement with this evaluation.

On January 9, 2014, the translation team manager had a meeting with this employee, explained the evaluation results of the employee’s probationary period, and then informed her that her employment was being terminated. The evaluation sheet of the probationary employee, on its front side, refers to 4 fields: knowledge of the job, work-performance quality, cooperation with colleagues, and communication skills, while the reverse side stipulates: “① The Company hires the employee; ② The Company extends the probationary period; and ③ The Company terminates employment.” The translation team manager explained the results of the probationary evaluation that revealed an insufficiency for each rated item (but one), and then, on the reverse side of the evaluation sheet, the manager checked the section “The Company terminates employment” and asked her to sign there for confirmation, after which she signed the evaluation sheet. In the meantime, the personnel team manager joined the meeting, and the Employee said: “My aptitude suggests that a marketing job is more suitable than a translation job”. The personnel team manager suggested that the Employee could apply for an open position related to marketing, and later gave a business card to the Employee. As the interview process continued during the final evaluation meeting, the Employee confirmed the items regarding termination of her employment with the Company and then signed the probationary evaluation sheet. In this situation, where the Employee herself even mentioned that she would be more qualified for marketing than for translation work, her termination was mutually agreed upon.


II. The Labor Commission’s Judgment Labor Commission’s Decision on May 9, 2014. Seoul 2014buhae703

The major points of dispute in this case are firstly, whether or not there was a dismissal; and secondly, if there was a dismissal, whether or not such dismissal was justifiable. The Labor Commission, after considering both parties’ claims, reviewing various submitted verifying documents, and direct interrogations during the judgment hearing regarding these points of dispute, decided on the following:
Previously, the Supreme Court had ruled, “the dismissal of an employee during a probationary period, or the refusal to enter into an employment contract after expiration of a probationary period, are interpreted more generously than general dismissal, as concerns the Employer’s right to be able to cancel further employment, because the probationary system was designed to give the employer time to evaluate whether or not a new employee has the competence required for a given job.” Supreme Court ruling on July 22, 2003, 2003da5955; SC ruling on February 24, 2006, 2002da62432


In this case, the Employee did not agree to termination of her employment, and even during the probationary period, the employer’s termination of the Employee without objective and justifiable reason shall qualify as an unfair dismissal. However:

1) The Employee was very not good at translation and made frequent mistakes.

2) Approximately one month after beginning employment with the Company, the Employee complained to the personnel team about the inefficient working system and unfair work assignments, which had caused disagreements between the Employee and her direct superior, the translation team manager. After this incident, the Company decided to terminate the Employee prior to completion of the three-month probationary period, due to the Employee’s work deficiencies and poor communication skills with the translation team manager.

3) The evaluation sheet which the Employee confirmed and signed in the section terminating her employment with the Company on January 9, 2014 is not be enough to verify mutually agreed-upon termination. However, the fact that she signed the evaluation could be understood as accepting dismissal, since she had signed an interim evaluation the month before (on December 4, 2013) which also highlighted her poor performance.

4) After receiving the lowest scores available in the probation evaluation performed on January 9, 2014, the Employee signed the evaluation sheet stipulating her termination without dispute.

5) During the process of evaluating the probationary results and delivering notification of termination, the Employee stated that she could do better in marketing than in translation. In consideration of the documents submitted and interviews conducted, the Employee was deemed to have suggested that the Company’s original evaluation of her translation skills were accurate that her skills were not adequate for the job.

6) Even though the Employee did not want to accept it, she knew that there was a probationary period stipulated in the employment contract and the rules of employment, and so termination of the probationary contract was not unilateral.

Considering all the items mentioned above, in terms of the purpose of setting the probationary period, termination of employment between the Company and the Employee was implemented based on the negative results of her poor work performance.


III. Major Points of Dispute in the Labor Commission’s Decision

There were two major points of dispute in this dismissal during the probationary period: the first was whether it was acceptable that the Company did not provide written notification; and the second is whether the Employee signing the probation evaluation sheet can be regarded as agreed-upon termination. I would like to look into each.

1. In cases where the company does not give written notification of dismissal to the probationary employee, is the dismissal valid or not

Article 23 (1) of the Labor Standards Act stipulates that the employer shall not dismiss a worker without justifiable reason. Article 27 stipulates that when intending to dismiss a worker, the employer shall notify the worker in writing of the reason for dismissal and the date of such dismissal. These rules were designed to make the employer become more circumspect, and ensure whether dismissal in fact exists, and if so, the reason for the dismissal as well as the date it becomes effective, so the worker can easily make appropriate preparations if he or she seeks a remedy claim. Lim Jongyul, Labor Law (12th ed.), Parkyoung Publishing Co. pp. 538-539

In cases where the probationary employee is dismissed, even though there was a justifiable reason to do so due to poor evaluation results of his/her occupational aptitude or job eligibility, if the company did not notify the probationary employee in writing of the reason for the dismissal and the date of such dismissal, such dismissal is regarded as an unfair dismissal due to the failure to implement procedural justification. National Labor Commission’s decision on October 17, 2011, 2011buhae676
Accordingly, this particular dismissal case was implemented without the Company’s written notification of dismissal, and so unless the case was considered an agreed-upon termination, as the Company claimed, this dismissal during the probationary period could only become invalid because the Company did not follow the procedural requirement of written notification.

2. Can the Employee’s signing of the probation evaluation sheet be regarded as agreed-upon termination of employment?

The term, ‘agreed-upon termination’ is not defined in labor law, but refers to mutual agreement: the employee expresses his or her intention to resign, and then the employer accepts it, thus terminating the employment relationship. Lim Jongyul, Labor Law (12th ed.), pg. 541.

First of all, the Labor Commission ensures that an employee’s signing of a probation evaluation sheet does not automatically become an agreed-upon termination of employment. However, in this case, the Employee signed the evaluation sheet knowing that it stipulated that the result of the evaluation was to terminate the employment. The Employee admitted in the evaluation meeting that she was not qualified for a translation job, but as there were no open positions for marketing that she wanted to apply for, she had applied for the translation position instead. Also, when the Employee was hired by the Company, she signed the employment contract knowing it included a probationary period. In the middle of that period, the Employee received an intermediate evaluation, and after the final evaluation at the end of the probationary period, she was informed of the termination of her employment contract. Considering all the aforementioned items, although the Employee did not agree with the termination of employment directly, she could be regarded as agreeing with the termination of employment indirectly. Accordingly, it is evident that the Labor Commission’s decision was fair.

3. Conclusion

It is common for companies to notify workers of dismissal after probation evaluations without written notification, but this can be deemed an illegal dismissal in violation of the employer’s duty to provide a written dismissal letter as stipulated by Article 27 of the Labor Standards Act. This particular dismissal during the probationary period was made without such written dismissal notification. Fortunately in this case, the Company made sure that this probationary employee understood the employer’s reason for dismissal during the evaluation meeting and obtained the Employee’s signature on the evaluation sheet. Because of this signature, the Labor Commission decided that the Company’s termination of her employment was not a dismissal, but an agreed-upon termination of employment based on the previously-mentioned conditional employment contract concerning probation. If this case had been designated as an illegal dismissal, the Company could have been liable for significant financial and operational damages. Accordingly, it is recommended that when dismissing even probationary employees, companies observe the required procedures such as providing a written notification of dismissal along with justifiable reasons as per the Labor Standards Act.