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‘Probationary Employment and Refusal of Regular Employment (Smoking in a Non‑Smoking Area)’ Unfair Dismissal Decision (Unfair Dismissal 249)
- Date2026/03/02 04:09
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[Case Information]
This case concerns a decision in which the employer prevailed (application dismissed) on the issue of “probationary employment and refusal of regular employment (smoking in a non‑smoking area).”
Decision body: Incheon Regional Labor Relations Commission
2025 Unfair Dismissal 9141 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2026.01.19 · Case result: Dismissed
Summary of key issues:
A. Whether the worker was a probationary employee
Given that the employment contract between the employer and the worker specified a 12‑week probationary period, that the parties signed the employment contract, and that the employer had been operating a probationary system under Article 7 of its Rules of Employment, the worker was found to be a probationary employee.
1. Legal Implications
This Incheon Regional Labor Relations Commission case illustrates whether a refusal of regular employment at the probationary/training stage constitutes an unfair dismissal, and how the Labor Relations Commission assesses such matters. In particular, it shows how the Commission views the status of probationary employees and the scope of the employer’s discretion in evaluation, and it is a decision worth comparing with redundancy and probationary dismissal cases frequently handled in the practice of Labor Law Firm Law&.
Ⅰ. Case Overview
The worker entered into an employment contract with the employer, agreeing to a 12‑week probationary period (trial period) and signing the contract. The employer had provisions on the probationary period in its Rules of Employment and, under separate probationary system operating guidelines, conducted quantitative and qualitative evaluations and refused regular employment for those scoring below a certain threshold.
When regular employment was refused at the end of the probationary period, the worker filed an application for remedy with the Labor Relations Commission, claiming that the refusal constituted an unfair dismissal. The Incheon Regional Labor Relations Commission, however, held that the employer’s refusal of regular employment was justified and dismissed the application.
Ⅱ. Issues
The issue in this case is whether, in respect of a probationary employee, an employer’s refusal of regular employment based on the worker’s violation of work rules and evaluation scores—despite partial non‑compliance with the internal probationary system operating guidelines—constitutes an unfair dismissal (lack of just cause for dismissal).
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case noted that the employer had clearly specified a 12‑week probationary period in the employment contract, that the Rules of Employment contained provisions on the probationary period which had been operated in practice, and that the worker had signed the contract and provided labor on the premise of being a probationary employee.
It further found that the worker had in fact violated work rules by smoking in a non‑smoking area; that, under the employer’s established standard of refusing regular employment where the combined quantitative and qualitative evaluation score was below 70 points, the worker had received a score of 63; and that the probationary system operating guidelines functioned as an internal manual, making it difficult to recognize them as having the same external and normative effect as the Rules of Employment. Therefore, some procedural deviations from those guidelines did not immediately render the dismissal unlawful.
Consequently, in light of the general legal principle that refusals of regular employment at the probationary/training stage are more broadly recognized as justified than ordinary dismissals, the panel held that the dismissal in this case could not be regarded as exceeding the employer’s discretion, unlawful, or clearly lacking in reasonableness by social standards.
Ⅳ. Practical Points (From the Worker’s Perspective)
A refusal of regular employment for a probationary or trial employee still constitutes a “dismissal” under the Labor Standards Act, and the worker may therefore challenge the reasonableness of both the procedures and the grounds. However, at the probationary stage, the employer’s discretion in evaluating job suitability and work attitude is broadly recognized. Unless there is clear discrimination or retaliation, or a completely unfounded low evaluation, it is difficult to overturn the employer’s decision before the Labor Relations Commission.
Moreover, as in this case, violations of work rules such as smoking in non‑smoking areas, or repeated issues with work attitude, are highly detrimental to probationary employees. During the probationary period, it is therefore particularly important to strictly comply with the Rules of Employment and service regulations.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s standpoint, when operating a probationary/training system, it is important to clearly state in the employment contract the probationary/training period and that the decision on regular employment will be made based on evaluation results, and to establish corresponding provisions in the Rules of Employment as a legal basis. Quantitative and qualitative evaluation criteria and scoring systems should be prepared in advance, and the evaluation process and results should be documented so they can be objectively substantiated, which is crucial for preventing disputes.
In addition, even if the probationary system operating guidelines are merely internal manuals, if the procedures set out in them have been consistently followed, they may in practice be regarded as established practices or standards. Accordingly, when changing the guidelines or operating them on an exceptional basis, the reasons and process should be clearly recorded.
To prevail in this type of case, it is necessary to have a precise understanding of the case law on probationary/training employment and refusal of regular employment, and to have the practical capability to systematically organize the facts in employment contracts, Rules of Employment, and evaluation materials in line with that legal framework.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the worker was a probationary employee
Given that the employment contract between the employer and the worker specified a 12‑week probationary period, that the parties signed the employment contract, and that the employer had been operating a probationary system under Article 7 of its Rules of Employment, the worker was found to be a probationary employee.
B. Whether the refusal of regular employment was justified
Although there were some indications that the employer had proceeded in a manner somewhat different from the probationary system operating guidelines in terms of procedure, the worker had in fact violated work rules by smoking in a non‑smoking area. The probationary system operating guidelines appeared to function as a manual, and it was difficult to regard a breach of those guidelines as having the same external effect as a breach of the Rules of Employment. The employer refused regular employment where the combined quantitative and qualitative evaluation score was below 70 points, and the worker received a score of 63. Taken together, the refusal of regular employment could not be deemed to have exceeded the employer’s discretion or to be unlawful.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
A. Whether the worker was a probationary employee
Given that the employment contract between the employer and the worker specified a 12‑week probationary period, that the parties signed the employment contract, and that the employer had been operating a probationary system under Article 7 of its Rules of Employment, the worker was found to be a probationary employee.
B. Whether the refusal of regular employment was justified
Although there were some indications that the employer had proceeded in a manner somewhat different from the probationary system operating guidelines in terms of procedure, the worker had in fact violated work rules by smoking in a non‑smoking area. The probationary system operating guidelines appeared to function as a manual, and it was difficult to regard a breach of those guidelines as having the same external effect as a breach of the Rules of Employment. The employer refused regular employment where the combined quantitative and qualitative evaluation score was below 70 points, and the worker received a score of 63. Taken together, the refusal of regular employment could not be deemed to have exceeded the employer’s discretion or to be unlawful. /
[See More Related Decisions]
- “‘Excessive Disciplinary Measure (Farm Management · Quarantine Case)’ Unfair Dismissal Decision”
- “‘No Formation of Employment Offer (Absence of Offer Letter)’ Unfair Dismissal Decision” – Decision date: – Case result: First‑instance decision upheld
- “‘Expression of Intention to Resign (Resignation Statement in Telephone Call)’ Unfair Dismissal Decision”
[Tags]
Unfair dismissal, probationary employment/refusal of regular employment (smoking in a non‑smoking area), probationary dismissal, performance evaluation/poor performance, violation of company policy/non‑compliance with work instructions, 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, “‘Excessive Disciplinary Measure (Farm Management · Quarantine Case)’ Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to probationary employment/refusal of regular employment (smoking in a non‑smoking area) can be viewed together in the “List of Decisions Related to Probationary Employment/Refusal of Regular Employment (Smoking in a Non‑Smoking Area).”
※ Korean version of this case: Korean article
This case concerns a decision in which the employer prevailed (application dismissed) on the issue of “probationary employment and refusal of regular employment (smoking in a non‑smoking area).”
Decision body: Incheon Regional Labor Relations Commission
2025 Unfair Dismissal 9141 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2026.01.19 · Case result: Dismissed
Summary of key issues:
A. Whether the worker was a probationary employee
Given that the employment contract between the employer and the worker specified a 12‑week probationary period, that the parties signed the employment contract, and that the employer had been operating a probationary system under Article 7 of its Rules of Employment, the worker was found to be a probationary employee.
1. Legal Implications
This Incheon Regional Labor Relations Commission case illustrates whether a refusal of regular employment at the probationary/training stage constitutes an unfair dismissal, and how the Labor Relations Commission assesses such matters. In particular, it shows how the Commission views the status of probationary employees and the scope of the employer’s discretion in evaluation, and it is a decision worth comparing with redundancy and probationary dismissal cases frequently handled in the practice of Labor Law Firm Law&.
Ⅰ. Case Overview
The worker entered into an employment contract with the employer, agreeing to a 12‑week probationary period (trial period) and signing the contract. The employer had provisions on the probationary period in its Rules of Employment and, under separate probationary system operating guidelines, conducted quantitative and qualitative evaluations and refused regular employment for those scoring below a certain threshold.
When regular employment was refused at the end of the probationary period, the worker filed an application for remedy with the Labor Relations Commission, claiming that the refusal constituted an unfair dismissal. The Incheon Regional Labor Relations Commission, however, held that the employer’s refusal of regular employment was justified and dismissed the application.
Ⅱ. Issues
The issue in this case is whether, in respect of a probationary employee, an employer’s refusal of regular employment based on the worker’s violation of work rules and evaluation scores—despite partial non‑compliance with the internal probationary system operating guidelines—constitutes an unfair dismissal (lack of just cause for dismissal).
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case noted that the employer had clearly specified a 12‑week probationary period in the employment contract, that the Rules of Employment contained provisions on the probationary period which had been operated in practice, and that the worker had signed the contract and provided labor on the premise of being a probationary employee.
It further found that the worker had in fact violated work rules by smoking in a non‑smoking area; that, under the employer’s established standard of refusing regular employment where the combined quantitative and qualitative evaluation score was below 70 points, the worker had received a score of 63; and that the probationary system operating guidelines functioned as an internal manual, making it difficult to recognize them as having the same external and normative effect as the Rules of Employment. Therefore, some procedural deviations from those guidelines did not immediately render the dismissal unlawful.
Consequently, in light of the general legal principle that refusals of regular employment at the probationary/training stage are more broadly recognized as justified than ordinary dismissals, the panel held that the dismissal in this case could not be regarded as exceeding the employer’s discretion, unlawful, or clearly lacking in reasonableness by social standards.
Ⅳ. Practical Points (From the Worker’s Perspective)
A refusal of regular employment for a probationary or trial employee still constitutes a “dismissal” under the Labor Standards Act, and the worker may therefore challenge the reasonableness of both the procedures and the grounds. However, at the probationary stage, the employer’s discretion in evaluating job suitability and work attitude is broadly recognized. Unless there is clear discrimination or retaliation, or a completely unfounded low evaluation, it is difficult to overturn the employer’s decision before the Labor Relations Commission.
Moreover, as in this case, violations of work rules such as smoking in non‑smoking areas, or repeated issues with work attitude, are highly detrimental to probationary employees. During the probationary period, it is therefore particularly important to strictly comply with the Rules of Employment and service regulations.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s standpoint, when operating a probationary/training system, it is important to clearly state in the employment contract the probationary/training period and that the decision on regular employment will be made based on evaluation results, and to establish corresponding provisions in the Rules of Employment as a legal basis. Quantitative and qualitative evaluation criteria and scoring systems should be prepared in advance, and the evaluation process and results should be documented so they can be objectively substantiated, which is crucial for preventing disputes.
In addition, even if the probationary system operating guidelines are merely internal manuals, if the procedures set out in them have been consistently followed, they may in practice be regarded as established practices or standards. Accordingly, when changing the guidelines or operating them on an exceptional basis, the reasons and process should be clearly recorded.
To prevail in this type of case, it is necessary to have a precise understanding of the case law on probationary/training employment and refusal of regular employment, and to have the practical capability to systematically organize the facts in employment contracts, Rules of Employment, and evaluation materials in line with that legal framework.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the worker was a probationary employee
Given that the employment contract between the employer and the worker specified a 12‑week probationary period, that the parties signed the employment contract, and that the employer had been operating a probationary system under Article 7 of its Rules of Employment, the worker was found to be a probationary employee.
B. Whether the refusal of regular employment was justified
Although there were some indications that the employer had proceeded in a manner somewhat different from the probationary system operating guidelines in terms of procedure, the worker had in fact violated work rules by smoking in a non‑smoking area. The probationary system operating guidelines appeared to function as a manual, and it was difficult to regard a breach of those guidelines as having the same external effect as a breach of the Rules of Employment. The employer refused regular employment where the combined quantitative and qualitative evaluation score was below 70 points, and the worker received a score of 63. Taken together, the refusal of regular employment could not be deemed to have exceeded the employer’s discretion or to be unlawful.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
A. Whether the worker was a probationary employee
Given that the employment contract between the employer and the worker specified a 12‑week probationary period, that the parties signed the employment contract, and that the employer had been operating a probationary system under Article 7 of its Rules of Employment, the worker was found to be a probationary employee.
B. Whether the refusal of regular employment was justified
Although there were some indications that the employer had proceeded in a manner somewhat different from the probationary system operating guidelines in terms of procedure, the worker had in fact violated work rules by smoking in a non‑smoking area. The probationary system operating guidelines appeared to function as a manual, and it was difficult to regard a breach of those guidelines as having the same external effect as a breach of the Rules of Employment. The employer refused regular employment where the combined quantitative and qualitative evaluation score was below 70 points, and the worker received a score of 63. Taken together, the refusal of regular employment could not be deemed to have exceeded the employer’s discretion or to be unlawful. /
[See More Related Decisions]
- “‘Excessive Disciplinary Measure (Farm Management · Quarantine Case)’ Unfair Dismissal Decision”
- “‘No Formation of Employment Offer (Absence of Offer Letter)’ Unfair Dismissal Decision” – Decision date: – Case result: First‑instance decision upheld
- “‘Expression of Intention to Resign (Resignation Statement in Telephone Call)’ Unfair Dismissal Decision”
[Tags]
Unfair dismissal, probationary employment/refusal of regular employment (smoking in a non‑smoking area), probationary dismissal, performance evaluation/poor performance, violation of company policy/non‑compliance with work instructions, 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, “‘Excessive Disciplinary Measure (Farm Management · Quarantine Case)’ Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to probationary employment/refusal of regular employment (smoking in a non‑smoking area) can be viewed together in the “List of Decisions Related to Probationary Employment/Refusal of Regular Employment (Smoking in a Non‑Smoking Area).”
※ Korean version of this case: Korean article
