Corporate trends / Performance record
Unfair Dismissal Case Concerning the Exercise of the Employer’s Right to Terminate During Probation (Long-Term Sick Leave and Concurrent Employment) (Unfair Dismissal 8)
- Date2025/12/29 13:07
- Read 231
An unfair dismissal relief application concerning the “exercise of the employer’s right to terminate during the probationary/trial period (long-term sick leave and violation of the prohibition on concurrent employment)” was heard before the Labor Relations Commission, resulting in a decision in favor of the employer. We would like to share this decision and its legal implications with you. Because refusal of permanent employment at the probationary/trial stage is governed by legal principles different from those applicable to ordinary dismissal, it is advisable to review the practical points together with Labor Law Firm Law&. In addition, this decision should be kept in mind for future workforce management situations where redundancy dismissals may be combined with such measures.
1. Legal Implications
The key issue in this case was “whether refusal of permanent employment during the probationary/trial period, based on long-term use of sick leave, violation of the prohibition on concurrent employment, and low probationary evaluation scores, can be regarded as a justifiable dismissal under the Labor Standards Act.”
The panel in this case took into account the following: the job posting, internal regulations, and personnel appointment documents clearly specified a six‑month probationary/trial period; the worker’s probationary evaluation score fell below the prescribed threshold (60 points), thereby constituting a ground for cancellation; the worker took more than 20 days of sick leave during the trial period and, during that sick leave, violated the prohibition on concurrent employment and was therefore disciplined with a one‑month pay reduction; the evaluation items for the probationary review were subdivided such that it was difficult to find a lack of fairness or objectivity; and the worker’s long-term sick leave and concurrent employment had a negative impact on colleagues, undermining the formation of a relationship of trust and reflecting an insincere attitude toward work.
Although the worker argued that taking sick leave is a legitimate right and that the concurrent employment had already been sanctioned by a pay reduction,
the panel held that this dismissal constituted a lawful exercise of the employer’s reserved right to terminate a probationary employee and that, in light of social norms, it was a reasonable and justifiable measure. Accordingly, it was not found to be unfair.
This case reconfirms that, although refusal of permanent employment at the probationary/trial stage constitutes a dismissal, the scope within which its justifiability is recognized is broader than that for ordinary dismissals. However, employers must clearly set out, in rules and written documents, the basis and duration of the trial period, as well as the evaluation criteria and procedures, and operate the system in a way that subdivides evaluation items so that objectivity is apparent. Workers, for their part, should be aware that conduct during the trial period that may undermine the relationship of trust—such as use of sick leave or concurrent employment—can be viewed far more strictly than in the case of regular employees.
2. Matters Determined
A. Whether the worker was a probationary (trial) employee
(1) The corporation’s job posting stated that “formal appointment (general staff–public service staff) will be made after a separate evaluation following a six‑month probationary period from the date of initial appointment,” and Article 11 of the “Internal Rules on the Management of Public Service Staff and Fixed-Term, etc. Contract Staff” provides that “a six‑month probationary period may be imposed.” (2) The “Notice of Personnel Appointment for Employees” specified the worker’s probationary period (22 July 2024 to 21 January 2025). In light of these points, the worker fell under the category of a probationary (trial) employee.
B. Whether the refusal of permanent employment was justified (grounds and procedure)
(1) The employment contract expressly provided that the contract could be terminated depending on the results of performance evaluations. (2) The worker’s probationary evaluation score was below 60 points, thereby constituting a ground for cancellation of employment. (3) The worker took more than 20 days of sick leave during the six‑month trial period and, during the sick leave period, violated the obligation not to engage in concurrent employment, for which a one‑month pay reduction was imposed as a disciplinary measure. (4) The employer subdivided the evaluation items for the probationary review, and it is therefore difficult to find that the probationary evaluation lacked fairness or objectivity. (5) The worker’s long-term sick leave and concurrent employment had a negative impact on fellow workers, undermining the formation of a relationship of trust and reflecting an insincere attitude toward work. Taken together, these factors show that grounds existed for refusing permanent employment. In addition, the employer delivered a notice of completion of the probationary period, and there were no procedural defects. Accordingly, the refusal of permanent employment was justified.
3. Gist of the Decision
A. Whether the worker was a probationary (trial) employee
(1) The corporation’s job posting stated that “formal appointment (general staff–public service staff) will be made after a separate evaluation following a six‑month probationary period from the date of initial appointment,” and Article 11 of the “Internal Rules on the Management of Public Service Staff and Fixed-Term, etc. Contract Staff” provides that “a six‑month probationary period may be imposed.” (2) The “Notice of Personnel Appointment for Employees” specified the worker’s probationary period (22 July 2024 to 21 January 2025). In light of these points, the worker fell under the category of a probationary (trial) employee.
B. Whether the refusal of permanent employment was justified (grounds and procedure)
(1) The employment contract expressly provided that the contract could be terminated depending on the results of performance evaluations. (2) The worker’s probationary evaluation score was below 60 points, thereby constituting a ground for cancellation of employment. (3) The worker took more than 20 days of sick leave during the six‑month trial period and, during the sick leave period, violated the obligation not to engage in concurrent employment, for which a one‑month pay reduction was imposed as a disciplinary measure. (4) The employer subdivided the evaluation items for the probationary review, and it is therefore difficult to find that the probationary evaluation lacked fairness or objectivity. (5) The worker’s long-term sick leave and concurrent employment had a negative impact on fellow workers, undermining the formation of a relationship of trust and reflecting an insincere attitude toward work. Taken together, these factors show that grounds existed for refusing permanent employment. In addition, the employer delivered a notice of completion of the probationary period, and there were no procedural defects. Accordingly, the refusal of permanent employment was justified. /
1. Legal Implications
The key issue in this case was “whether refusal of permanent employment during the probationary/trial period, based on long-term use of sick leave, violation of the prohibition on concurrent employment, and low probationary evaluation scores, can be regarded as a justifiable dismissal under the Labor Standards Act.”
The panel in this case took into account the following: the job posting, internal regulations, and personnel appointment documents clearly specified a six‑month probationary/trial period; the worker’s probationary evaluation score fell below the prescribed threshold (60 points), thereby constituting a ground for cancellation; the worker took more than 20 days of sick leave during the trial period and, during that sick leave, violated the prohibition on concurrent employment and was therefore disciplined with a one‑month pay reduction; the evaluation items for the probationary review were subdivided such that it was difficult to find a lack of fairness or objectivity; and the worker’s long-term sick leave and concurrent employment had a negative impact on colleagues, undermining the formation of a relationship of trust and reflecting an insincere attitude toward work.
Although the worker argued that taking sick leave is a legitimate right and that the concurrent employment had already been sanctioned by a pay reduction,
the panel held that this dismissal constituted a lawful exercise of the employer’s reserved right to terminate a probationary employee and that, in light of social norms, it was a reasonable and justifiable measure. Accordingly, it was not found to be unfair.
This case reconfirms that, although refusal of permanent employment at the probationary/trial stage constitutes a dismissal, the scope within which its justifiability is recognized is broader than that for ordinary dismissals. However, employers must clearly set out, in rules and written documents, the basis and duration of the trial period, as well as the evaluation criteria and procedures, and operate the system in a way that subdivides evaluation items so that objectivity is apparent. Workers, for their part, should be aware that conduct during the trial period that may undermine the relationship of trust—such as use of sick leave or concurrent employment—can be viewed far more strictly than in the case of regular employees.
2. Matters Determined
A. Whether the worker was a probationary (trial) employee
(1) The corporation’s job posting stated that “formal appointment (general staff–public service staff) will be made after a separate evaluation following a six‑month probationary period from the date of initial appointment,” and Article 11 of the “Internal Rules on the Management of Public Service Staff and Fixed-Term, etc. Contract Staff” provides that “a six‑month probationary period may be imposed.” (2) The “Notice of Personnel Appointment for Employees” specified the worker’s probationary period (22 July 2024 to 21 January 2025). In light of these points, the worker fell under the category of a probationary (trial) employee.
B. Whether the refusal of permanent employment was justified (grounds and procedure)
(1) The employment contract expressly provided that the contract could be terminated depending on the results of performance evaluations. (2) The worker’s probationary evaluation score was below 60 points, thereby constituting a ground for cancellation of employment. (3) The worker took more than 20 days of sick leave during the six‑month trial period and, during the sick leave period, violated the obligation not to engage in concurrent employment, for which a one‑month pay reduction was imposed as a disciplinary measure. (4) The employer subdivided the evaluation items for the probationary review, and it is therefore difficult to find that the probationary evaluation lacked fairness or objectivity. (5) The worker’s long-term sick leave and concurrent employment had a negative impact on fellow workers, undermining the formation of a relationship of trust and reflecting an insincere attitude toward work. Taken together, these factors show that grounds existed for refusing permanent employment. In addition, the employer delivered a notice of completion of the probationary period, and there were no procedural defects. Accordingly, the refusal of permanent employment was justified.
3. Gist of the Decision
A. Whether the worker was a probationary (trial) employee
(1) The corporation’s job posting stated that “formal appointment (general staff–public service staff) will be made after a separate evaluation following a six‑month probationary period from the date of initial appointment,” and Article 11 of the “Internal Rules on the Management of Public Service Staff and Fixed-Term, etc. Contract Staff” provides that “a six‑month probationary period may be imposed.” (2) The “Notice of Personnel Appointment for Employees” specified the worker’s probationary period (22 July 2024 to 21 January 2025). In light of these points, the worker fell under the category of a probationary (trial) employee.
B. Whether the refusal of permanent employment was justified (grounds and procedure)
(1) The employment contract expressly provided that the contract could be terminated depending on the results of performance evaluations. (2) The worker’s probationary evaluation score was below 60 points, thereby constituting a ground for cancellation of employment. (3) The worker took more than 20 days of sick leave during the six‑month trial period and, during the sick leave period, violated the obligation not to engage in concurrent employment, for which a one‑month pay reduction was imposed as a disciplinary measure. (4) The employer subdivided the evaluation items for the probationary review, and it is therefore difficult to find that the probationary evaluation lacked fairness or objectivity. (5) The worker’s long-term sick leave and concurrent employment had a negative impact on fellow workers, undermining the formation of a relationship of trust and reflecting an insincere attitude toward work. Taken together, these factors show that grounds existed for refusing permanent employment. In addition, the employer delivered a notice of completion of the probationary period, and there were no procedural defects. Accordingly, the refusal of permanent employment was justified. /
