Corporate trends / Performance record
Unfair Dismissal Case Concerning Probationary Dismissal (Change in Probation Evaluation) (Unfair Dismissal 582)
- Date2026/07/29 04:06
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[Case Information]
This case is a decision that ended with the cancellation of the first-instance decision, focusing on the issue of “probationary dismissal (change in probation evaluation).”
Decision Committee: Central Labor Relations Commission 2025BuHae9486 ○ ○ ○ Application for Reconsideration of Remedy for Unfair Dismissal
2026-05-21 · Case Result: First-Instance Decision Cancelled
Key Issue Summary: (a)
1. Legal Implications
Ⅰ. Overview of the Case
This case concerns a worker who was hired under an employment contract stipulating a three‑month probationary period “having the meaning of a trial (probationary) employment.” The company refused to confirm his/her regular employment based on the results of the probation evaluation, and the worker filed for a remedy for unfair dismissal. The first‑instance Labor Relations Commission ruled in favor of the employer, but the issue of unfair dismissal was again contested at the reconsideration stage before the Central Labor Relations Commission. This is a typical type of dispute over trial/probationary employment that Labor Law Firm Law& frequently encounters in unfair dismissal proceedings before the Labor Relations Commissions.
Ⅱ. Issues in Dispute
The issues in this case are whether a worker whose employment contract specifies a trial (probationary) period falls under the category of a trial (probationary) worker, and whether a refusal to confirm regular employment based solely on a probation evaluation conducted in a manner different from the existing evaluation practice can be recognized as a just cause for dismissal.
The decision panel in this case viewed the worker as a trial (probationary) employee whose employer retained the right to terminate the contract, on the grounds that the employer had defined the probationary period as a trial period in the employment contract and the worker also acknowledged this.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel proceeded on the basis that: (i) the employment contract explicitly states, “The probationary period shall be three months, and the probationary period shall have the meaning of a trial (probationary) employment”; (ii) both the worker and the employer acknowledge this, so there is no dispute as to the establishment of a trial (probationary) employment relationship; and (iii) although a refusal to confirm regular employment during or at the end of a trial period constitutes a “dismissal” under Article 23 of the Labor Standards Act, the scope of justifiability is recognized more broadly than for ordinary dismissals.
Nevertheless, the panel found that: (iv) the person in charge of the probation evaluation was changed from the immediate superior (team leader), which had been the established practice, to an executive director; and (v) the number of evaluators and the evaluation method differed from the past, raising doubts about objectivity and fairness. Taking these points together, the panel held that it was difficult to regard the reasons for refusing regular employment as based on an objective and reasonable evaluation.
The dismissal in this case was therefore found to be unfair, on the ground that, even considering the worker’s status as a trial (probationary) employee, the fairness of the evaluation procedures and methods had not been ensured.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s standpoint, even if the term “probation” is used, you should be aware that, if the employment contract contemplates an aptitude/qualification evaluation as a condition for confirmation of regular employment, you may legally be assessed as a trial (probationary) employee. However, this does not mean that the employer has unfettered discretion over trial employees. If changes in the evaluator, evaluation items, or evaluation procedures from established practice worked to your disadvantage, it is advisable to organize in detail the background and factual circumstances of those changes.
When filing for a remedy for unfair dismissal (refusal to confirm regular employment) with the Labor Relations Commission, you should frame the main issue not merely as dissatisfaction with the result, but as the lack of objectivity and fairness in the evaluation process.
Ⅴ. Practical Points (From the Employer/Company Perspective)
From the employer’s standpoint, when operating a trial/probationary system, it is very important not only to specify the trial period, but also to define in advance the evaluator(s), evaluation items, and evaluation procedures, and to adhere to these consistently in practice. In particular, if you change established practice—for example, by replacing the immediate superior (e.g., team leader) as evaluator with a specific individual (e.g., an executive director), or by reducing the number of evaluators—you should document the necessity and reasonableness of such changes and provide sufficient prior notice to the worker.
While refusal to confirm regular employment for a trial (probationary) employee is recognized more broadly than ordinary dismissal, you must bear in mind that, at a minimum, if objective and reasonable grounds and fair procedures are not secured, it may still be found to constitute unfair dismissal.
2. Matters Decided
(a) Overview of the Case and Procedural History
(a) Whether the worker qualifies as a trial (probationary) employee
Article 3 of the employment contract provides, “The probationary period shall be three months, and the probationary period shall have the meaning of a trial (probationary) employment,” and both the worker and the employer acknowledge this. Accordingly, the worker qualifies as a trial (probationary) employee whose employer retains the right to terminate the employment contract.
(b) Whether the reasons for refusing regular employment are justifiable
The first‑instance decision held that it was difficult to view the probation evaluation of the worker in this case as lacking objective and reasonable grounds or as unfair in terms of evaluation items, evaluation process, and evaluation results. However, (i) the evaluator, contrary to the existing evaluation practice, was not the immediate superior (team leader) but an executive director; (ii) the number of evaluators…
3. Summary of the Decision
(a) Summary of the Labor Relations Commission’s Reasoning
(a) Whether the worker qualifies as a trial (probationary) employee
Article 3 of the employment contract provides, “The probationary period shall be three months, and the probationary period shall have the meaning of a trial (probationary) employment,” and both the worker and the employer acknowledge this. Accordingly, the worker qualifies as a trial (probationary) employee whose employer retains the right to terminate the employment contract.
(b) Whether the reasons for refusing regular employment are justifiable
The first‑instance decision held that it was difficult to view the probation evaluation of the worker in this case as lacking objective and reasonable grounds or as unfair in terms of evaluation items, evaluation process, and evaluation results. However, (i) the evaluator, contrary to the existing evaluation practice, was not the immediate superior (team leader) but an executive director; (ii) the number of evaluators… /
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning Non‑Fulfillment of Requirements for Redundancy Dismissal (Workout Company)”
- “Unfair Dismissal Decision Concerning Non‑Formation of Hiring Commitment (Absence of Offer Letter)” – Decision Date: – Case No.: First‑Instance Decision Upheld
- “Unfair Dismissal Decision Concerning Dismissal of Application (Non‑Appearance at Hearing)” – Decision Date: – Case No.: Dismissed
[Tags]
Unfair dismissal, probationary dismissal (change in probation evaluation), probationary dismissal, performance evaluation · poor performance, Labor Law Firm Law&, large labor law firm, Samseong‑dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is part of Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Unfair Dismissal Decision Concerning Excessive Disciplinary Measure (Three‑Month Pay Cut),” in a new window.
※ The list of decisions related to probationary dismissal (change in probation evaluation) can be viewed together at “List of Decisions Related to Probationary Dismissal (Change in Probation Evaluation).”
※ Korean version of this case: Korean article
This case is a decision that ended with the cancellation of the first-instance decision, focusing on the issue of “probationary dismissal (change in probation evaluation).”
Decision Committee: Central Labor Relations Commission 2025BuHae9486 ○ ○ ○ Application for Reconsideration of Remedy for Unfair Dismissal
2026-05-21 · Case Result: First-Instance Decision Cancelled
Key Issue Summary: (a)
1. Legal Implications
Ⅰ. Overview of the Case
This case concerns a worker who was hired under an employment contract stipulating a three‑month probationary period “having the meaning of a trial (probationary) employment.” The company refused to confirm his/her regular employment based on the results of the probation evaluation, and the worker filed for a remedy for unfair dismissal. The first‑instance Labor Relations Commission ruled in favor of the employer, but the issue of unfair dismissal was again contested at the reconsideration stage before the Central Labor Relations Commission. This is a typical type of dispute over trial/probationary employment that Labor Law Firm Law& frequently encounters in unfair dismissal proceedings before the Labor Relations Commissions.
Ⅱ. Issues in Dispute
The issues in this case are whether a worker whose employment contract specifies a trial (probationary) period falls under the category of a trial (probationary) worker, and whether a refusal to confirm regular employment based solely on a probation evaluation conducted in a manner different from the existing evaluation practice can be recognized as a just cause for dismissal.
The decision panel in this case viewed the worker as a trial (probationary) employee whose employer retained the right to terminate the contract, on the grounds that the employer had defined the probationary period as a trial period in the employment contract and the worker also acknowledged this.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel proceeded on the basis that: (i) the employment contract explicitly states, “The probationary period shall be three months, and the probationary period shall have the meaning of a trial (probationary) employment”; (ii) both the worker and the employer acknowledge this, so there is no dispute as to the establishment of a trial (probationary) employment relationship; and (iii) although a refusal to confirm regular employment during or at the end of a trial period constitutes a “dismissal” under Article 23 of the Labor Standards Act, the scope of justifiability is recognized more broadly than for ordinary dismissals.
Nevertheless, the panel found that: (iv) the person in charge of the probation evaluation was changed from the immediate superior (team leader), which had been the established practice, to an executive director; and (v) the number of evaluators and the evaluation method differed from the past, raising doubts about objectivity and fairness. Taking these points together, the panel held that it was difficult to regard the reasons for refusing regular employment as based on an objective and reasonable evaluation.
The dismissal in this case was therefore found to be unfair, on the ground that, even considering the worker’s status as a trial (probationary) employee, the fairness of the evaluation procedures and methods had not been ensured.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s standpoint, even if the term “probation” is used, you should be aware that, if the employment contract contemplates an aptitude/qualification evaluation as a condition for confirmation of regular employment, you may legally be assessed as a trial (probationary) employee. However, this does not mean that the employer has unfettered discretion over trial employees. If changes in the evaluator, evaluation items, or evaluation procedures from established practice worked to your disadvantage, it is advisable to organize in detail the background and factual circumstances of those changes.
When filing for a remedy for unfair dismissal (refusal to confirm regular employment) with the Labor Relations Commission, you should frame the main issue not merely as dissatisfaction with the result, but as the lack of objectivity and fairness in the evaluation process.
Ⅴ. Practical Points (From the Employer/Company Perspective)
From the employer’s standpoint, when operating a trial/probationary system, it is very important not only to specify the trial period, but also to define in advance the evaluator(s), evaluation items, and evaluation procedures, and to adhere to these consistently in practice. In particular, if you change established practice—for example, by replacing the immediate superior (e.g., team leader) as evaluator with a specific individual (e.g., an executive director), or by reducing the number of evaluators—you should document the necessity and reasonableness of such changes and provide sufficient prior notice to the worker.
While refusal to confirm regular employment for a trial (probationary) employee is recognized more broadly than ordinary dismissal, you must bear in mind that, at a minimum, if objective and reasonable grounds and fair procedures are not secured, it may still be found to constitute unfair dismissal.
2. Matters Decided
(a) Overview of the Case and Procedural History
(a) Whether the worker qualifies as a trial (probationary) employee
Article 3 of the employment contract provides, “The probationary period shall be three months, and the probationary period shall have the meaning of a trial (probationary) employment,” and both the worker and the employer acknowledge this. Accordingly, the worker qualifies as a trial (probationary) employee whose employer retains the right to terminate the employment contract.
(b) Whether the reasons for refusing regular employment are justifiable
The first‑instance decision held that it was difficult to view the probation evaluation of the worker in this case as lacking objective and reasonable grounds or as unfair in terms of evaluation items, evaluation process, and evaluation results. However, (i) the evaluator, contrary to the existing evaluation practice, was not the immediate superior (team leader) but an executive director; (ii) the number of evaluators…
3. Summary of the Decision
(a) Summary of the Labor Relations Commission’s Reasoning
(a) Whether the worker qualifies as a trial (probationary) employee
Article 3 of the employment contract provides, “The probationary period shall be three months, and the probationary period shall have the meaning of a trial (probationary) employment,” and both the worker and the employer acknowledge this. Accordingly, the worker qualifies as a trial (probationary) employee whose employer retains the right to terminate the employment contract.
(b) Whether the reasons for refusing regular employment are justifiable
The first‑instance decision held that it was difficult to view the probation evaluation of the worker in this case as lacking objective and reasonable grounds or as unfair in terms of evaluation items, evaluation process, and evaluation results. However, (i) the evaluator, contrary to the existing evaluation practice, was not the immediate superior (team leader) but an executive director; (ii) the number of evaluators… /
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning Non‑Fulfillment of Requirements for Redundancy Dismissal (Workout Company)”
- “Unfair Dismissal Decision Concerning Non‑Formation of Hiring Commitment (Absence of Offer Letter)” – Decision Date: – Case No.: First‑Instance Decision Upheld
- “Unfair Dismissal Decision Concerning Dismissal of Application (Non‑Appearance at Hearing)” – Decision Date: – Case No.: Dismissed
[Tags]
Unfair dismissal, probationary dismissal (change in probation evaluation), probationary dismissal, performance evaluation · poor performance, Labor Law Firm Law&, large labor law firm, Samseong‑dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is part of Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Unfair Dismissal Decision Concerning Excessive Disciplinary Measure (Three‑Month Pay Cut),” in a new window.
※ The list of decisions related to probationary dismissal (change in probation evaluation) can be viewed together at “List of Decisions Related to Probationary Dismissal (Change in Probation Evaluation).”
※ Korean version of this case: Korean article
