Corporate trends / Performance record
Unfair Dismissal Case on “Refusal of Final Employment after Probation (One‑Month Probation at a Private Academy)” (Unfair Dismissal 172)
- Date2026/02/03 04:05
- Read 231
This case concerns an unfair dismissal decision in which the employee prevailed in full on the issue of “refusal of final employment after probation (one‑month probation at a private academy).”
Adjudicating body: Gyeonggi Regional Labor Relations Commission
Case: 2025UnfairDismissal9127 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.12.16 · Outcome: Fully upheld (employee’s claim fully accepted)
Summary of key issues:
(a) Whether the employer’s business falls within the scope of an “establishment employing at least five employees on a continuous basis” for purposes of applying the unfair dismissal remedy system, where the average number of employees during the calculation period was 4.69 but the number of days with five or more employees accounted for at least one‑half of the total days;
(b) Whether the employee qualifies as a probationary (trial) employee where the job posting specified “one‑month probation” and the employment contract stated that “Party A, upon Party B’s initial hiring, may set a one‑month probationary period to assess work performance and aptitude and then decide whether to continue the employment relationship …”.
1. Legal Implications
Ⅰ. Case Overview
This case concerns an employer operating what appears to be a private academy that specified “one‑month probation” in both the job posting and the employment contract, hired the employee on that basis, and then refused final employment upon expiry of the probationary period. The issue was whether this refusal constituted an unfair dismissal. The employee filed an application with the Labor Relations Commission for a remedy for unfair dismissal together with a request for a monetary compensation order. The Gyeonggi Regional Labor Relations Commission found the employer’s refusal of final employment to be an unfair dismissal, fully upheld the employee’s claim, and ordered monetary compensation of approximately KRW 8.22 million.
The key issue in this case is whether, in a small business whose workforce fluctuates around five employees, the refusal of final employment of a probationary (trial) employee hired on a one‑month probationary basis constitutes an unfair dismissal.
Ⅱ. Issues in Dispute
The issues in this case were, first, whether a small business where the number of employees falls below five on a not‑insignificant number of days nonetheless satisfies the requirement of being an “establishment employing at least five employees on a continuous basis,” which is a prerequisite for filing an application for remedy for unfair dismissal. Second, whether an employee whose job posting and employment contract both specified “one‑month probation” can be regarded as a probationary (trial) employee. Third, whether the employer’s refusal of final employment at the end of the probationary period, citing lack of job suitability and harm to co‑workers, could be recognized as a legitimate dismissal (a personnel‑related dismissal, not a redundancy dismissal) supported by objective and reasonable grounds and socially acceptable justifiability.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case held that, even though the average number of employees during the calculation period was only 4.69, the employer’s business nonetheless constituted an “establishment employing at least five employees on a continuous basis” under the Labor Standards Act, because the number of days with five or more employees accounted for at least one‑half of the total days when calculated on a daily headcount basis. Accordingly, the business was subject to the unfair dismissal remedy system.
The panel also found that the employee qualified as a probationary (trial) employee on the grounds that the job posting expressly stated “one‑month probation” and the employment contract provided that “upon initial hiring, a one‑month probationary period shall be set to assess work performance and aptitude, and the employer may decide whether to continue the employment relationship based on that assessment.” In other words, the employee was hired on a trial basis on the premise of regular employment, i.e., as a probationary (trial) employee.
In this case, the panel noted that although the employer asserted that it refused final employment because the employee lacked job suitability and caused harm to co‑workers, the employer neither presented to the employee nor submitted to the Commission any specific and objective supporting materials such as evaluation records or performance appraisal forms. The panel further emphasized that, while the legitimacy of dismissal during a probationary period is recognized more broadly than that of an ordinary dismissal, objective and reasonable grounds and socially acceptable justifiability are still required. Based on the materials submitted, the panel found it difficult to conclude that these standards were met.
Accordingly, the panel held that the dismissal in this case—i.e., the refusal of final employment as an exercise of the employer’s reserved right to terminate—constituted an unfair dismissal lacking objective and reasonable grounds and socially acceptable justifiability.
The Labor Relations Commission also accepted the employee’s request for a monetary compensation order in lieu of reinstatement. It calculated the monetary compensation at approximately KRW 8,228,340, based on the amount of wages that would have been paid had the employee worked normally from the day following the dismissal to the date of the decision. This reflects the general legal principle that, within the unfair dismissal remedy system, a monetary compensation order functions as a substantive alternative to a reinstatement order and that the amount is calculated primarily with reference to the calculation period and wage equivalent.
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, first, even if a workplace appears small, it is necessary to re‑examine whether it qualifies as an establishment employing at least five employees on a continuous basis by looking at the daily headcount. You should bear in mind that, even if the average number of employees is fewer than five, you may still file an application for remedy for unfair dismissal with the Labor Relations Commission if the number of days with five or more employees exceeds one‑half of the total days.
Second, even if the term “probation” is used at the time of hiring, if the structure is such that, after a certain period, the employer evaluates suitability and then decides whether to grant final employment, the employee will legally be regarded as a probationary (trial) employee, and the legitimacy of dismissal during the probationary period (refusal of final employment) will be subject to review.
Third, it is not sufficient for an employer to refuse final employment at the end of the probationary period by making vague assertions such as “lack of work ability” or “causing harm to co‑workers.” If there are no specific materials such as evaluation sheets, written warnings, or records of non‑compliance with work instructions, the refusal may be found to constitute an unfair dismissal. Fourth, if you suffer an unfair dismissal and consider reinstatement to be practically difficult, you may, in the Labor Relations Commission proceedings, apply for a monetary compensation order and claim compensation equivalent to wages from the date of dismissal to the date of the decision. For this purpose, it is advisable to keep your pay slips, employment contract, and other relevant documents well organized in advance.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, you should first accurately understand that, in calculating the number of employees, the determination of whether there are at least five employees is made based on the total number of employees, including part‑time and fixed‑term employees, calculated on a cumulative daily basis. A small business is not automatically excluded from the scope of the dismissal regulations under the Labor Standards Act or from the application of the Labor Relations Commission’s unfair dismissal remedy system. Accordingly, overall HR and labor management must be structured on the premise that these regulations may apply.
When operating a probationary or training system, it is necessary to clearly set out in the job posting, rules of employment, and employment contract the purpose and duration of the probation (or training), the evaluation items, and the possibility of refusal of final employment. During the probationary period, you should consistently accumulate objective materials, such as evaluation sheets on actual job performance, records of training and guidance, and written warnings or interview records when problems arise. Although case law holds that, unlike disciplinary dismissals, the procedural rules for disciplinary action need not be applied in full to dismissals during probation, an employer who refuses final employment “simply because the employee is not to their liking” without any basis runs a high risk of being found to have committed an unfair dismissal. At a minimum, you must ensure written notice and explanation of reasons and the existence of evaluation materials.
Finally, you should always bear in mind the possibility that a monetary compensation order may be issued instead of reinstatement. If an unfair dismissal is found, you may be required to pay in a lump sum the wage equivalent from the date of dismissal to the date of the decision. Therefore, before taking any personnel measures, it is advisable to consult with a specialized labor law firm such as Labor Law Firm Law& to review in advance the legitimacy of the dismissal grounds and the sufficiency of supporting evidence.
(ⓒ Labor Attorney Moon Young‑seop, Labor Law Firm Law&. Unauthorized reproduction and redistribution are prohibited.)
2. Matters Adjudicated
A. Case Overview and Procedural History
(a) Whether the number of employees was at least five on a continuous basis
During the calculation period, the average number of employees was 4.69, and the number of days with five or more employees accounted for at least one‑half of the total days. Accordingly, the employer’s business falls within the scope of an establishment employing at least five employees on a continuous basis and is therefore subject to the unfair dismissal remedy system.
(b) Whether the employee was a probationary (trial) employee
In light of the fact that the job posting specified “one‑month probation” and the employment contract provided that “Party A, upon Party B’s initial hiring, may set a one‑month probationary period to assess work performance and aptitude and then decide whether to continue the employment relationship,” the employee qualifies as a probationary (trial) employee.
(c) Legitimacy of the refusal of final employment
The employer asserted that it refused final employment because the employee lacked job suitability and caused harm to co‑workers. However, the employer did not present to the employee any specific evaluation materials or substantive supporting documents such as performance appraisal forms, nor did it submit such materials to the Commission. Therefore, it is difficult to regard the refusal of final employment as being based on objective and reasonable grounds, and there are no reasons that can be deemed socially acceptable.
(d) Acceptance of the application for a monetary compensation order
The employee’s application for a monetary compensation order is accepted, and the amount of monetary compensation is calculated at KRW 8,228,340, equivalent to wages from the date following the dismissal to the date of the decision.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
(a) Whether the number of employees was at least five on a continuous basis
During the calculation period, the average number of employees was 4.69, and the number of days with five or more employees accounted for at least one‑half of the total days. Accordingly, the employer’s business falls within the scope of an establishment employing at least five employees on a continuous basis and is therefore subject to the unfair dismissal remedy system.
(b) Whether the employee was a probationary (trial) employee
In light of the fact that the job posting specified “one‑month probation” and the employment contract provided that “Party A, upon Party B’s initial hiring, may set a one‑month probationary period to assess work performance and aptitude and then decide whether to continue the employment relationship,” the employee qualifies as a probationary (trial) employee.
(c) Legitimacy of the refusal of final employment
The employer asserted that it refused final employment because the employee lacked job suitability and caused harm to co‑workers. However, the employer did not present to the employee any specific evaluation materials or substantive supporting documents such as performance appraisal forms, nor did it submit such materials to the Commission. Therefore, it is difficult to regard the refusal of final employment as being based on objective and reasonable grounds, and there are no reasons that can be deemed socially acceptable.
(d) Acceptance of the application for a monetary compensation order
The employee’s application for a monetary compensation order is accepted, and the amount of monetary compensation is calculated at KRW 8,228,340, equivalent to wages from the date following the dismissal to the date of the decision.
/
[See More Related Decisions]
- “Unfair Dismissal Decision on ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision on ‘Expression of Intent to Resign (Resignation Remark Made by Telephone)’”
- “Unfair Dismissal Decision on ‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case number: Initial decision upheld
[Tags]
Unfair dismissal, refusal of final employment after probation (one‑month probation at a private academy), dismissal during probation, 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&.
※ You can view the previous article, “Unfair Dismissal Decision on ‘Procedural Defect (Failure to Convene Disciplinary Committee)’,” in a new window.
※ A list of decisions related to refusal of final employment after probation (one‑month probation at a private academy) can be found under “List of Decisions Related to Refusal of Final Employment after Probation (One‑Month Probation at a Private Academy).”
※ Korean version of this case: Korean article
Adjudicating body: Gyeonggi Regional Labor Relations Commission
Case: 2025UnfairDismissal9127 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.12.16 · Outcome: Fully upheld (employee’s claim fully accepted)
Summary of key issues:
(a) Whether the employer’s business falls within the scope of an “establishment employing at least five employees on a continuous basis” for purposes of applying the unfair dismissal remedy system, where the average number of employees during the calculation period was 4.69 but the number of days with five or more employees accounted for at least one‑half of the total days;
(b) Whether the employee qualifies as a probationary (trial) employee where the job posting specified “one‑month probation” and the employment contract stated that “Party A, upon Party B’s initial hiring, may set a one‑month probationary period to assess work performance and aptitude and then decide whether to continue the employment relationship …”.
1. Legal Implications
Ⅰ. Case Overview
This case concerns an employer operating what appears to be a private academy that specified “one‑month probation” in both the job posting and the employment contract, hired the employee on that basis, and then refused final employment upon expiry of the probationary period. The issue was whether this refusal constituted an unfair dismissal. The employee filed an application with the Labor Relations Commission for a remedy for unfair dismissal together with a request for a monetary compensation order. The Gyeonggi Regional Labor Relations Commission found the employer’s refusal of final employment to be an unfair dismissal, fully upheld the employee’s claim, and ordered monetary compensation of approximately KRW 8.22 million.
The key issue in this case is whether, in a small business whose workforce fluctuates around five employees, the refusal of final employment of a probationary (trial) employee hired on a one‑month probationary basis constitutes an unfair dismissal.
Ⅱ. Issues in Dispute
The issues in this case were, first, whether a small business where the number of employees falls below five on a not‑insignificant number of days nonetheless satisfies the requirement of being an “establishment employing at least five employees on a continuous basis,” which is a prerequisite for filing an application for remedy for unfair dismissal. Second, whether an employee whose job posting and employment contract both specified “one‑month probation” can be regarded as a probationary (trial) employee. Third, whether the employer’s refusal of final employment at the end of the probationary period, citing lack of job suitability and harm to co‑workers, could be recognized as a legitimate dismissal (a personnel‑related dismissal, not a redundancy dismissal) supported by objective and reasonable grounds and socially acceptable justifiability.
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case held that, even though the average number of employees during the calculation period was only 4.69, the employer’s business nonetheless constituted an “establishment employing at least five employees on a continuous basis” under the Labor Standards Act, because the number of days with five or more employees accounted for at least one‑half of the total days when calculated on a daily headcount basis. Accordingly, the business was subject to the unfair dismissal remedy system.
The panel also found that the employee qualified as a probationary (trial) employee on the grounds that the job posting expressly stated “one‑month probation” and the employment contract provided that “upon initial hiring, a one‑month probationary period shall be set to assess work performance and aptitude, and the employer may decide whether to continue the employment relationship based on that assessment.” In other words, the employee was hired on a trial basis on the premise of regular employment, i.e., as a probationary (trial) employee.
In this case, the panel noted that although the employer asserted that it refused final employment because the employee lacked job suitability and caused harm to co‑workers, the employer neither presented to the employee nor submitted to the Commission any specific and objective supporting materials such as evaluation records or performance appraisal forms. The panel further emphasized that, while the legitimacy of dismissal during a probationary period is recognized more broadly than that of an ordinary dismissal, objective and reasonable grounds and socially acceptable justifiability are still required. Based on the materials submitted, the panel found it difficult to conclude that these standards were met.
Accordingly, the panel held that the dismissal in this case—i.e., the refusal of final employment as an exercise of the employer’s reserved right to terminate—constituted an unfair dismissal lacking objective and reasonable grounds and socially acceptable justifiability.
The Labor Relations Commission also accepted the employee’s request for a monetary compensation order in lieu of reinstatement. It calculated the monetary compensation at approximately KRW 8,228,340, based on the amount of wages that would have been paid had the employee worked normally from the day following the dismissal to the date of the decision. This reflects the general legal principle that, within the unfair dismissal remedy system, a monetary compensation order functions as a substantive alternative to a reinstatement order and that the amount is calculated primarily with reference to the calculation period and wage equivalent.
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, first, even if a workplace appears small, it is necessary to re‑examine whether it qualifies as an establishment employing at least five employees on a continuous basis by looking at the daily headcount. You should bear in mind that, even if the average number of employees is fewer than five, you may still file an application for remedy for unfair dismissal with the Labor Relations Commission if the number of days with five or more employees exceeds one‑half of the total days.
Second, even if the term “probation” is used at the time of hiring, if the structure is such that, after a certain period, the employer evaluates suitability and then decides whether to grant final employment, the employee will legally be regarded as a probationary (trial) employee, and the legitimacy of dismissal during the probationary period (refusal of final employment) will be subject to review.
Third, it is not sufficient for an employer to refuse final employment at the end of the probationary period by making vague assertions such as “lack of work ability” or “causing harm to co‑workers.” If there are no specific materials such as evaluation sheets, written warnings, or records of non‑compliance with work instructions, the refusal may be found to constitute an unfair dismissal. Fourth, if you suffer an unfair dismissal and consider reinstatement to be practically difficult, you may, in the Labor Relations Commission proceedings, apply for a monetary compensation order and claim compensation equivalent to wages from the date of dismissal to the date of the decision. For this purpose, it is advisable to keep your pay slips, employment contract, and other relevant documents well organized in advance.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, you should first accurately understand that, in calculating the number of employees, the determination of whether there are at least five employees is made based on the total number of employees, including part‑time and fixed‑term employees, calculated on a cumulative daily basis. A small business is not automatically excluded from the scope of the dismissal regulations under the Labor Standards Act or from the application of the Labor Relations Commission’s unfair dismissal remedy system. Accordingly, overall HR and labor management must be structured on the premise that these regulations may apply.
When operating a probationary or training system, it is necessary to clearly set out in the job posting, rules of employment, and employment contract the purpose and duration of the probation (or training), the evaluation items, and the possibility of refusal of final employment. During the probationary period, you should consistently accumulate objective materials, such as evaluation sheets on actual job performance, records of training and guidance, and written warnings or interview records when problems arise. Although case law holds that, unlike disciplinary dismissals, the procedural rules for disciplinary action need not be applied in full to dismissals during probation, an employer who refuses final employment “simply because the employee is not to their liking” without any basis runs a high risk of being found to have committed an unfair dismissal. At a minimum, you must ensure written notice and explanation of reasons and the existence of evaluation materials.
Finally, you should always bear in mind the possibility that a monetary compensation order may be issued instead of reinstatement. If an unfair dismissal is found, you may be required to pay in a lump sum the wage equivalent from the date of dismissal to the date of the decision. Therefore, before taking any personnel measures, it is advisable to consult with a specialized labor law firm such as Labor Law Firm Law& to review in advance the legitimacy of the dismissal grounds and the sufficiency of supporting evidence.
(ⓒ Labor Attorney Moon Young‑seop, Labor Law Firm Law&. Unauthorized reproduction and redistribution are prohibited.)
2. Matters Adjudicated
A. Case Overview and Procedural History
(a) Whether the number of employees was at least five on a continuous basis
During the calculation period, the average number of employees was 4.69, and the number of days with five or more employees accounted for at least one‑half of the total days. Accordingly, the employer’s business falls within the scope of an establishment employing at least five employees on a continuous basis and is therefore subject to the unfair dismissal remedy system.
(b) Whether the employee was a probationary (trial) employee
In light of the fact that the job posting specified “one‑month probation” and the employment contract provided that “Party A, upon Party B’s initial hiring, may set a one‑month probationary period to assess work performance and aptitude and then decide whether to continue the employment relationship,” the employee qualifies as a probationary (trial) employee.
(c) Legitimacy of the refusal of final employment
The employer asserted that it refused final employment because the employee lacked job suitability and caused harm to co‑workers. However, the employer did not present to the employee any specific evaluation materials or substantive supporting documents such as performance appraisal forms, nor did it submit such materials to the Commission. Therefore, it is difficult to regard the refusal of final employment as being based on objective and reasonable grounds, and there are no reasons that can be deemed socially acceptable.
(d) Acceptance of the application for a monetary compensation order
The employee’s application for a monetary compensation order is accepted, and the amount of monetary compensation is calculated at KRW 8,228,340, equivalent to wages from the date following the dismissal to the date of the decision.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
(a) Whether the number of employees was at least five on a continuous basis
During the calculation period, the average number of employees was 4.69, and the number of days with five or more employees accounted for at least one‑half of the total days. Accordingly, the employer’s business falls within the scope of an establishment employing at least five employees on a continuous basis and is therefore subject to the unfair dismissal remedy system.
(b) Whether the employee was a probationary (trial) employee
In light of the fact that the job posting specified “one‑month probation” and the employment contract provided that “Party A, upon Party B’s initial hiring, may set a one‑month probationary period to assess work performance and aptitude and then decide whether to continue the employment relationship,” the employee qualifies as a probationary (trial) employee.
(c) Legitimacy of the refusal of final employment
The employer asserted that it refused final employment because the employee lacked job suitability and caused harm to co‑workers. However, the employer did not present to the employee any specific evaluation materials or substantive supporting documents such as performance appraisal forms, nor did it submit such materials to the Commission. Therefore, it is difficult to regard the refusal of final employment as being based on objective and reasonable grounds, and there are no reasons that can be deemed socially acceptable.
(d) Acceptance of the application for a monetary compensation order
The employee’s application for a monetary compensation order is accepted, and the amount of monetary compensation is calculated at KRW 8,228,340, equivalent to wages from the date following the dismissal to the date of the decision.
/
[See More Related Decisions]
- “Unfair Dismissal Decision on ‘Failure to Satisfy Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision on ‘Expression of Intent to Resign (Resignation Remark Made by Telephone)’”
- “Unfair Dismissal Decision on ‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case number: Initial decision upheld
[Tags]
Unfair dismissal, refusal of final employment after probation (one‑month probation at a private academy), dismissal during probation, 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&.
※ You can view the previous article, “Unfair Dismissal Decision on ‘Procedural Defect (Failure to Convene Disciplinary Committee)’,” in a new window.
※ A list of decisions related to refusal of final employment after probation (one‑month probation at a private academy) can be found under “List of Decisions Related to Refusal of Final Employment after Probation (One‑Month Probation at a Private Academy).”
※ Korean version of this case: Korean article
