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Unfair Dismissal Case on “Formation of Employment Contract (Pre‑Commencement Text Notification)” (Unfair Dismissal 616)
- Date2026/08/11 04:18
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This case note concerns an unfair dismissal decision on the issue of “formation of employment contract (pre‑commencement text notification),” in which the first‑instance decision was upheld.
[Case Information]
This case is a decision that concluded with the first‑instance decision being upheld on the issue of “formation of employment contract (pre‑commencement text notification).”
Decision body: Central Labor Relations Commission, 2026BuHae130 ○○○ Application for Re‑review of Remedy for Unfair Dismissal
2026‑07‑10 · Disposition: First‑instance decision upheld
Key issues in summary: (i) Work was ordinarily performed after an employment contract was executed in writing, but the worker unilaterally left the workplace without the employer’s approval and therefore did not execute the written employment contract; (ii) despite the employer’s request to execute the written employment contract, the worker did not report to work, so the employment contract was not concluded; (iii) the employer sent text messages stating, “We are also in urgent need of staff, so we cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” which indicated an intention not to proceed with the conclusion of an employment contract…
1. Legal Implications
Ⅰ. Overview of the Case
In this case, the worker reported to the workplace during the hiring process and began working, but, before the usual written employment contract was executed, unilaterally left the workplace without the employer’s approval and did not return thereafter. The issue was whether the subsequent exchanges via text messages and the like constituted an unfair dismissal. The worker filed an application for remedy for unfair dismissal with the Labor Relations Commission, and the Central Labor Relations Commission upheld the first‑instance decision in favor of the employer.
Ⅱ. Summary of Issues
The issue in this case is whether, in circumstances where the worker left the workplace before a formal written employment contract was executed and did not report to work thereafter, the employer’s text notification constitutes “unfair dismissal” under the Labor Standards Act, and, as a prerequisite to that, whether an employment contract had been formed and whether there existed a “dismissal” that is subject to remedy by the Labor Relations Commission.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case noted that work at this workplace was ordinarily performed after a written employment contract was executed; that the worker, having unilaterally left the workplace without the employer’s approval, did not execute the written employment contract; and that, despite the employer’s repeated requests to execute the written employment contract, the worker did not report to work again, so that an employment contract was not actually concluded.
In light of these circumstances, the panel viewed the employer’s text messages stating, “We cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” not as a unilateral termination of an already‑formed employment contract, but as an expression of intent not to proceed further with the hiring process.
Taking into account these circumstances—particularly that it was difficult to regard the employer as having actually hired the worker as of that time, and that it was difficult to find a clear, separate expression of intent to dismiss the worker with the purport of “you are fired”—the panel held that, in this case, there was no “dismissal” of a worker within the meaning of the Labor Standards Act, and therefore there was no subject matter for an application for remedy for unfair dismissal.
Ⅳ. Practical Points (From the Worker’s Perspective)
Workers should be aware that, even if they have begun working, it is advantageous for obtaining a remedy for unfair dismissal before the Labor Relations Commission to execute a written employment contract in accordance with the usual procedures and clearly agree on the terms and conditions of employment with the employer. In particular, if a worker unilaterally leaves the workplace without the employer’s approval, or stops reporting to work without responding to the employer’s request to execute the contract, the very formation of the employment contract may be denied from the outset. As a result, it may be held that there was no “dismissal” as understood by the Labor Relations Commission, and the application for remedy may be dismissed on procedural grounds or on the merits.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s standpoint, it is essential to execute a written employment contract before or at the very outset of actual work during the hiring process, and to clearly record expressions of intent regarding the terms and conditions of employment and the hiring decision. In addition, when notifying an applicant or worker who has stopped reporting to work that the hiring process is being discontinued, it is helpful for preventing disputes to distinguish between (i) dismissal terminating an already‑formed employment contract and (ii) withdrawal of hiring where no contract has yet been formed, and to clearly record that purport via text message, messenger, or similar means.
2. Matters Decided
A. Overview of the Case and Procedural History
(i) Work was ordinarily performed after an employment contract was executed in writing, but the worker unilaterally left the workplace without the employer’s approval and therefore did not execute the written employment contract; (ii) despite the employer’s request to execute the written employment contract, the worker did not report to work, so the employment contract was not concluded; (iii) the employer sent text messages stating, “We are also in urgent need of staff, so we cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” so there appeared to be no reason to postpone the conclusion of the employment contract, and it appeared that the employer did not consider the worker to have been hired as of that time; (iv) the employer’s expression of intent to the worker with the purport of “quit”…
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
(i) Work was ordinarily performed after an employment contract was executed in writing, but the worker unilaterally left the workplace without the employer’s approval and therefore did not execute the written employment contract; (ii) despite the employer’s request to execute the written employment contract, the worker did not report to work, so the employment contract was not concluded; (iii) the employer sent text messages stating, “We are also in urgent need of staff, so we cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” so there appeared to be no reason to postpone the conclusion of the employment contract, and it appeared that the employer did not consider the worker to have been hired as of that time; (iv) the employer’s expression of intent to the worker with the purport of “quit”… /
[See More Related Decisions]
- “‘Non‑Formation of Conditional Hiring (Absence of Offer Letter)’ Unfair Dismissal Decision” – Date of decision: – Disposition: First‑instance decision upheld
- “‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’ Unfair Dismissal Decision”
- “‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’ Unfair Dismissal Decision”
[Tags]
Unfair dismissal, formation of employment contract (pre‑commencement text notification), others, 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “‘Number of Regular Employees (Fitness Trainer)’ Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to formation of employment contract (pre‑commencement text notification) can be found in the “List of Decisions Related to Formation of Employment Contract (Pre‑Commencement Text Notification).”
※ Korean version of this case: Korean article
[Case Information]
This case is a decision that concluded with the first‑instance decision being upheld on the issue of “formation of employment contract (pre‑commencement text notification).”
Decision body: Central Labor Relations Commission, 2026BuHae130 ○○○ Application for Re‑review of Remedy for Unfair Dismissal
2026‑07‑10 · Disposition: First‑instance decision upheld
Key issues in summary: (i) Work was ordinarily performed after an employment contract was executed in writing, but the worker unilaterally left the workplace without the employer’s approval and therefore did not execute the written employment contract; (ii) despite the employer’s request to execute the written employment contract, the worker did not report to work, so the employment contract was not concluded; (iii) the employer sent text messages stating, “We are also in urgent need of staff, so we cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” which indicated an intention not to proceed with the conclusion of an employment contract…
1. Legal Implications
Ⅰ. Overview of the Case
In this case, the worker reported to the workplace during the hiring process and began working, but, before the usual written employment contract was executed, unilaterally left the workplace without the employer’s approval and did not return thereafter. The issue was whether the subsequent exchanges via text messages and the like constituted an unfair dismissal. The worker filed an application for remedy for unfair dismissal with the Labor Relations Commission, and the Central Labor Relations Commission upheld the first‑instance decision in favor of the employer.
Ⅱ. Summary of Issues
The issue in this case is whether, in circumstances where the worker left the workplace before a formal written employment contract was executed and did not report to work thereafter, the employer’s text notification constitutes “unfair dismissal” under the Labor Standards Act, and, as a prerequisite to that, whether an employment contract had been formed and whether there existed a “dismissal” that is subject to remedy by the Labor Relations Commission.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case noted that work at this workplace was ordinarily performed after a written employment contract was executed; that the worker, having unilaterally left the workplace without the employer’s approval, did not execute the written employment contract; and that, despite the employer’s repeated requests to execute the written employment contract, the worker did not report to work again, so that an employment contract was not actually concluded.
In light of these circumstances, the panel viewed the employer’s text messages stating, “We cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” not as a unilateral termination of an already‑formed employment contract, but as an expression of intent not to proceed further with the hiring process.
Taking into account these circumstances—particularly that it was difficult to regard the employer as having actually hired the worker as of that time, and that it was difficult to find a clear, separate expression of intent to dismiss the worker with the purport of “you are fired”—the panel held that, in this case, there was no “dismissal” of a worker within the meaning of the Labor Standards Act, and therefore there was no subject matter for an application for remedy for unfair dismissal.
Ⅳ. Practical Points (From the Worker’s Perspective)
Workers should be aware that, even if they have begun working, it is advantageous for obtaining a remedy for unfair dismissal before the Labor Relations Commission to execute a written employment contract in accordance with the usual procedures and clearly agree on the terms and conditions of employment with the employer. In particular, if a worker unilaterally leaves the workplace without the employer’s approval, or stops reporting to work without responding to the employer’s request to execute the contract, the very formation of the employment contract may be denied from the outset. As a result, it may be held that there was no “dismissal” as understood by the Labor Relations Commission, and the application for remedy may be dismissed on procedural grounds or on the merits.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s standpoint, it is essential to execute a written employment contract before or at the very outset of actual work during the hiring process, and to clearly record expressions of intent regarding the terms and conditions of employment and the hiring decision. In addition, when notifying an applicant or worker who has stopped reporting to work that the hiring process is being discontinued, it is helpful for preventing disputes to distinguish between (i) dismissal terminating an already‑formed employment contract and (ii) withdrawal of hiring where no contract has yet been formed, and to clearly record that purport via text message, messenger, or similar means.
2. Matters Decided
A. Overview of the Case and Procedural History
(i) Work was ordinarily performed after an employment contract was executed in writing, but the worker unilaterally left the workplace without the employer’s approval and therefore did not execute the written employment contract; (ii) despite the employer’s request to execute the written employment contract, the worker did not report to work, so the employment contract was not concluded; (iii) the employer sent text messages stating, “We are also in urgent need of staff, so we cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” so there appeared to be no reason to postpone the conclusion of the employment contract, and it appeared that the employer did not consider the worker to have been hired as of that time; (iv) the employer’s expression of intent to the worker with the purport of “quit”…
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
(i) Work was ordinarily performed after an employment contract was executed in writing, but the worker unilaterally left the workplace without the employer’s approval and therefore did not execute the written employment contract; (ii) despite the employer’s request to execute the written employment contract, the worker did not report to work, so the employment contract was not concluded; (iii) the employer sent text messages stating, “We are also in urgent need of staff, so we cannot wait for someone when we don’t even know when you will come,” and “If you say you cannot come in, we cannot hire you and have you work,” so there appeared to be no reason to postpone the conclusion of the employment contract, and it appeared that the employer did not consider the worker to have been hired as of that time; (iv) the employer’s expression of intent to the worker with the purport of “quit”… /
[See More Related Decisions]
- “‘Non‑Formation of Conditional Hiring (Absence of Offer Letter)’ Unfair Dismissal Decision” – Date of decision: – Disposition: First‑instance decision upheld
- “‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’ Unfair Dismissal Decision”
- “‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’ Unfair Dismissal Decision”
[Tags]
Unfair dismissal, formation of employment contract (pre‑commencement text notification), others, 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “‘Number of Regular Employees (Fitness Trainer)’ Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to formation of employment contract (pre‑commencement text notification) can be found in the “List of Decisions Related to Formation of Employment Contract (Pre‑Commencement Text Notification).”
※ Korean version of this case: Korean article
