Corporate trends / Performance record
Unfair Dismissal Case on “Existence of a Conditional Offer of Employment (Inquiry About Ability to Commence Work)” (Unfair Dismissal 157)
- Date2026/01/29 04:04
- Read 231
[Case Information]
This case is a decision in which the issue of “existence of a conditional offer of employment (inquiry about ability to commence work)” was resolved by upholding the first-instance decision.
Decision Body: Central Labor Relations Commission 2025Buhae1349 ○ ○ ○ Application for Reconsideration of Remedy for Unfair Dismissal
2025.12.22 · Case Result: First-instance decision upheld
Summary of Key Issues: The employer had not expressly entered into an employment contract with the worker, had not notified the worker of any conditional offer of employment, and merely inquired whether the worker was able to commence work, which could not be regarded as a final notice of acceptance. The parties had not clearly agreed on working conditions, even orally, and there were no other circumstances indicating that the employer had expressed an intention to accept the employment contract. In light of these factors, it was difficult to find that an employment contract between the parties had been definitively concluded, and therefore that a conditional offer of employment had been established...
1. Legal Implications
Ⅰ. Case Overview
In this reconsideration case before the Central Labor Relations Commission concerning unfair dismissal, the issue was whether it could be regarded as an unfair dismissal where the employer did not proceed with hiring after inquiring of the applicant about their ability to commence work. The Labor Relations Commission first closely examined whether the applicant qualified as a “worker” eligible to file for a remedy for unfair dismissal, given that the employer denied having made any explicit conditional offer of employment or having concluded an employment contract.
Ⅱ. Summary of Issues
The issue in this case is whether, where certain parts of the recruitment process such as document screening and interviews have been conducted and the employer has inquired about the applicant’s ability to commence work, an employment contract can be deemed to have been formed or a conditional offer of employment can be recognized—thus making a remedy for unfair dismissal available—even in the absence of a separate written employment contract or explicit notice of a conditional offer.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case found that the employer had not expressly concluded an employment contract with the worker, had not notified the worker of any conditional offer of employment, and that the mere fact of inquiring whether the worker could commence work could not be regarded as a final notice of acceptance or a conditional offer of employment. It also found that the parties had not clearly determined working conditions such as wages and working hours, even orally, and that there were no other circumstances indicating that the employer had accepted the conclusion of an employment contract.
Accordingly, it was difficult to find that an employment contract had been definitively formed between the parties, and therefore the relationship of a conditional offer of employment had not been established.
Ultimately, the Labor Relations Commission held that, since neither an employment contract nor a conditional offer of employment could be recognized, the employer’s decision to discontinue the hiring process could not be regarded as a “dismissal” or “unfair dismissal” under the Labor Standards Act, and ruled in favor of the employer.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, it should be noted that partial steps such as presumed interview success, inquiries about ability to commence work, issuance of an ID card, or participation in training do not, by themselves, immediately lead to recognition of a conditional offer of employment or the formation of an employment contract. To contest unfair dismissal at the conditional offer stage, it is important to secure as much evidence as possible of the employer’s expression of acceptance, such as text messages, emails, official letters, or notices that show “final acceptance/notification of conditional offer,” “agreement on specific working conditions,” and “fixed start date.”
In addition, because the Labor Relations Commission and the courts comprehensively consider the job posting, rules of employment, and the usual recruitment process (document screening, tests, interviews, medical examinations, execution of an employment contract, etc.), it is advisable to organize in advance evidence and testimony showing which stages of the usual process you have completed and at what point the company normally gives “final acceptance” notices.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, particular care must be taken not to use expressions in job postings, notices, interview guidance messages, or inquiries about ability to commence work that could easily be misunderstood as final acceptance. It is necessary to clearly distinguish expressions for each stage—such as document screening pass, interview pass, and notice of expected start date—and to clearly stipulate in the rules of employment and recruitment guidelines that “employment is finalized only after execution of an employment contract and the company’s final acceptance.”
Furthermore, once a conditional offer of employment has been established, its cancellation may be evaluated as a dismissal under the Labor Standards Act, raising issues of just cause and the obligation to provide written notice. Accordingly, employers should establish internal criteria on “when a conditional offer of employment is deemed to be formed” and maintain consistent practice through training of HR personnel. While the Labor Relations Commission and the courts generally place the burden of proof regarding the formation of a conditional offer of employment or an employment contract on the worker, from a dispute-prevention standpoint, systematic management of documents and records for each recruitment stage by the company is key to reducing labor-related risks.
(ⓒ2025 copyright. Labor Attorney Youngseop Moon, Labor Law Firm Law&.)
2. Matters Decided
A. Case Overview and Procedural History
The employer had not expressly concluded an employment contract with the worker, had not notified the worker of any conditional offer of employment, and the fact that the employer merely inquired about the worker’s ability to commence work could not be regarded as a final notice of acceptance. The parties had not clearly determined working conditions, even orally, and there were no other circumstances indicating that the employer had expressed an intention to accept the employment contract. In light of these factors, it was difficult to find that an employment contract between the parties had been definitively concluded, and therefore a conditional offer of employment could not be found to have been established.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
The employer had not expressly concluded an employment contract with the worker, had not notified the worker of any conditional offer of employment, and the fact that the employer merely inquired about the worker’s ability to commence work could not be regarded as a final notice of acceptance. The parties had not clearly determined working conditions, even orally, and there were no other circumstances indicating that the employer had expressed an intention to accept the employment contract. In light of these factors, it was difficult to find that an employment contract between the parties had been definitively concluded, and therefore a conditional offer of employment could not be found to have been established. /
[See More Related Decisions]
- “Unfair Dismissal Case on Non-Formation of Conditional Offer of Employment (Absence of Offer Letter)” – Date of Decision: - Case Result: First-instance decision upheld
- “Unfair Dismissal Case on Expression of Intent to Resign (Resignation Remark Made by Telephone Call)”
- “Unfair Dismissal Case on Failure to Meet Requirements for Redundancy Dismissal (Workout Company)”
[Tags]
Unfair dismissal, existence of conditional offer of employment (inquiry about ability to commence work), cancellation/non-formation of conditional offer of employment, 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 part of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ The previous article, “Unfair Dismissal Case on Excessive Disciplinary Measure (Unauthorized Use of Meat and Beverages Intended for Sale),” can be viewed in a new window.
※ The list of decisions related to existence of a conditional offer of employment (inquiry about ability to commence work) can be found in the “List of Decisions Related to Existence of Conditional Offer of Employment (Inquiry About Ability to Commence Work).”
※ Korean version of this case: Korean article
This case is a decision in which the issue of “existence of a conditional offer of employment (inquiry about ability to commence work)” was resolved by upholding the first-instance decision.
Decision Body: Central Labor Relations Commission 2025Buhae1349 ○ ○ ○ Application for Reconsideration of Remedy for Unfair Dismissal
2025.12.22 · Case Result: First-instance decision upheld
Summary of Key Issues: The employer had not expressly entered into an employment contract with the worker, had not notified the worker of any conditional offer of employment, and merely inquired whether the worker was able to commence work, which could not be regarded as a final notice of acceptance. The parties had not clearly agreed on working conditions, even orally, and there were no other circumstances indicating that the employer had expressed an intention to accept the employment contract. In light of these factors, it was difficult to find that an employment contract between the parties had been definitively concluded, and therefore that a conditional offer of employment had been established...
1. Legal Implications
Ⅰ. Case Overview
In this reconsideration case before the Central Labor Relations Commission concerning unfair dismissal, the issue was whether it could be regarded as an unfair dismissal where the employer did not proceed with hiring after inquiring of the applicant about their ability to commence work. The Labor Relations Commission first closely examined whether the applicant qualified as a “worker” eligible to file for a remedy for unfair dismissal, given that the employer denied having made any explicit conditional offer of employment or having concluded an employment contract.
Ⅱ. Summary of Issues
The issue in this case is whether, where certain parts of the recruitment process such as document screening and interviews have been conducted and the employer has inquired about the applicant’s ability to commence work, an employment contract can be deemed to have been formed or a conditional offer of employment can be recognized—thus making a remedy for unfair dismissal available—even in the absence of a separate written employment contract or explicit notice of a conditional offer.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case found that the employer had not expressly concluded an employment contract with the worker, had not notified the worker of any conditional offer of employment, and that the mere fact of inquiring whether the worker could commence work could not be regarded as a final notice of acceptance or a conditional offer of employment. It also found that the parties had not clearly determined working conditions such as wages and working hours, even orally, and that there were no other circumstances indicating that the employer had accepted the conclusion of an employment contract.
Accordingly, it was difficult to find that an employment contract had been definitively formed between the parties, and therefore the relationship of a conditional offer of employment had not been established.
Ultimately, the Labor Relations Commission held that, since neither an employment contract nor a conditional offer of employment could be recognized, the employer’s decision to discontinue the hiring process could not be regarded as a “dismissal” or “unfair dismissal” under the Labor Standards Act, and ruled in favor of the employer.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, it should be noted that partial steps such as presumed interview success, inquiries about ability to commence work, issuance of an ID card, or participation in training do not, by themselves, immediately lead to recognition of a conditional offer of employment or the formation of an employment contract. To contest unfair dismissal at the conditional offer stage, it is important to secure as much evidence as possible of the employer’s expression of acceptance, such as text messages, emails, official letters, or notices that show “final acceptance/notification of conditional offer,” “agreement on specific working conditions,” and “fixed start date.”
In addition, because the Labor Relations Commission and the courts comprehensively consider the job posting, rules of employment, and the usual recruitment process (document screening, tests, interviews, medical examinations, execution of an employment contract, etc.), it is advisable to organize in advance evidence and testimony showing which stages of the usual process you have completed and at what point the company normally gives “final acceptance” notices.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, particular care must be taken not to use expressions in job postings, notices, interview guidance messages, or inquiries about ability to commence work that could easily be misunderstood as final acceptance. It is necessary to clearly distinguish expressions for each stage—such as document screening pass, interview pass, and notice of expected start date—and to clearly stipulate in the rules of employment and recruitment guidelines that “employment is finalized only after execution of an employment contract and the company’s final acceptance.”
Furthermore, once a conditional offer of employment has been established, its cancellation may be evaluated as a dismissal under the Labor Standards Act, raising issues of just cause and the obligation to provide written notice. Accordingly, employers should establish internal criteria on “when a conditional offer of employment is deemed to be formed” and maintain consistent practice through training of HR personnel. While the Labor Relations Commission and the courts generally place the burden of proof regarding the formation of a conditional offer of employment or an employment contract on the worker, from a dispute-prevention standpoint, systematic management of documents and records for each recruitment stage by the company is key to reducing labor-related risks.
(ⓒ2025 copyright. Labor Attorney Youngseop Moon, Labor Law Firm Law&.)
2. Matters Decided
A. Case Overview and Procedural History
The employer had not expressly concluded an employment contract with the worker, had not notified the worker of any conditional offer of employment, and the fact that the employer merely inquired about the worker’s ability to commence work could not be regarded as a final notice of acceptance. The parties had not clearly determined working conditions, even orally, and there were no other circumstances indicating that the employer had expressed an intention to accept the employment contract. In light of these factors, it was difficult to find that an employment contract between the parties had been definitively concluded, and therefore a conditional offer of employment could not be found to have been established.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
The employer had not expressly concluded an employment contract with the worker, had not notified the worker of any conditional offer of employment, and the fact that the employer merely inquired about the worker’s ability to commence work could not be regarded as a final notice of acceptance. The parties had not clearly determined working conditions, even orally, and there were no other circumstances indicating that the employer had expressed an intention to accept the employment contract. In light of these factors, it was difficult to find that an employment contract between the parties had been definitively concluded, and therefore a conditional offer of employment could not be found to have been established. /
[See More Related Decisions]
- “Unfair Dismissal Case on Non-Formation of Conditional Offer of Employment (Absence of Offer Letter)” – Date of Decision: - Case Result: First-instance decision upheld
- “Unfair Dismissal Case on Expression of Intent to Resign (Resignation Remark Made by Telephone Call)”
- “Unfair Dismissal Case on Failure to Meet Requirements for Redundancy Dismissal (Workout Company)”
[Tags]
Unfair dismissal, existence of conditional offer of employment (inquiry about ability to commence work), cancellation/non-formation of conditional offer of employment, 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 part of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ The previous article, “Unfair Dismissal Case on Excessive Disciplinary Measure (Unauthorized Use of Meat and Beverages Intended for Sale),” can be viewed in a new window.
※ The list of decisions related to existence of a conditional offer of employment (inquiry about ability to commence work) can be found in the “List of Decisions Related to Existence of Conditional Offer of Employment (Inquiry About Ability to Commence Work).”
※ Korean version of this case: Korean article
