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Misidentification of Probationary Dismissal (Exclusion of Probation for Employees with 2+ Years’ Experience): Unfair Dismissal Case (Unfair Dismissal 191)
- Date2026/02/10 04:04
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[Case Information]
This case is a decision in which the issue of “misidentification of probationary dismissal (rule excluding probation for employees with 2+ years’ experience)” was resolved by upholding the first-instance decision.
Decision body: National Labor Relations Commission
2025BuHae1285 ○ ○ ○ Application for Reexamination for Remedy of Unfair Dismissal
2025.12.15 · Result: First-instance decision upheld
Summary of key issues:
A. Whether this constituted a probationary employment contract
① The rules of employment provide that no probationary period is required for skilled workers with at least two years of experience in the relevant work;
② It is undisputed between the parties that the employee has more than two years of relevant experience;
③ The employer argues that it has discretion to shorten the probationary period, but in light of the structure of the rules of employment, the wording of the relevant provision, and the purpose of probationary employment, it is to be interpreted that no probationary period shall be set for employees with at least two years of experience;
④ …
1. Legal Implications
Ⅰ. Case Overview
In this case, the employer entered into an employment contract with the employee on the premise of a probationary/trial period, and then notified dismissal on the assumption that the employee was a probationary worker. The employee applied to the Labor Relations Commission for a remedy, claiming unfair dismissal.
The first-instance Labor Relations Commission found in favor of the employee and held that the dismissal was unfair. The employer filed for reexamination with the National Labor Relations Commission, but the first-instance decision was upheld.
Ⅱ. Summary of Issues
The issue in this case is:
“Where the rules of employment stipulate that no probationary period shall be set for employees with at least two years of relevant experience, but a separate probationary period is specified in the employment contract, can this be regarded as a probationary employment contract? If it is not a probationary employment contract, is the dismissal in this case justified under the general legal principles governing dismissal?”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case noted that the rules of employment explicitly state that no probationary period is required for skilled workers with at least two years of experience in the relevant work, that the employee in fact had more than two years of relevant experience, that in light of the structure of the rules of employment and the purpose of the probationary system it is to be interpreted that no probationary period shall be set for employees with at least two years of experience, and that the probationary period specified in the employment contract appears to be null and void under Article 97 of the Labor Standards Act.
On this basis, the panel held that no probationary employment contract had been concluded between the employee and the employer.
The dismissal in this case was therefore regarded as a dismissal of an ordinary (non‑probationary) employee, to which the strict legal principles restricting dismissal must apply.
Furthermore, the panel pointed out that the burden of proof regarding the just cause for dismissal lies with the employer, that most of the grounds for dismissal asserted by the employer remained at the level of subjective assessments of “lack of competence” and that the existence of each specific ground was not objectively proven, that there were no objective criteria for evaluating the employee’s job performance or that their application was not fair, and that, based on the reasons presented, it was difficult to view the case as involving such serious grounds as to make it impossible to continue the employment relationship.
Accordingly, the panel held that the dismissal in this case was unfair.
Ⅳ. Practical Points (From the Employee’s Perspective)
Employees should first check whether, given their experience and qualifications, the provisions in the rules of employment excluding probation/trial periods apply to them. If, despite being an experienced worker for whom the rules of employment stipulate that no probationary period shall be set, a probation or trial period is written into the employment contract, that part may be null and void under Article 97 of the Labor Standards Act, and the dismissal should be contested as a general dismissal, not as a probationary dismissal.
In addition, where dismissal is based only on abstract grounds such as “lack of competence” or “unsuitability for the job,” employees should keep in mind that the employer must prove objective evaluation criteria and specific facts, and consider filing an application with the Labor Relations Commission for a remedy for unfair dismissal on that basis.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s perspective, it is very important to ensure that the rules of employment and the contents of individual employment contracts do not conflict. In particular, when operating probationary/trial systems, if there is a rule excluding probation for experienced workers, HR and recruitment practices must be managed consistently so that probationary periods are not arbitrarily set in individual employment contracts.
Moreover, whether the employee is on probation or not, if dismissal is being considered, the employer should establish clear, prior evaluation criteria for job performance and work attitude, and accumulate specific facts and materials in accordance with those criteria. Otherwise, it will be difficult to have the objective and reasonable grounds for dismissal, and its social acceptability, recognized by the Labor Relations Commission or the courts.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether this constituted a probationary employment contract
① The rules of employment provide that no probationary period is required for skilled workers with at least two years of experience in the relevant work;
② It is undisputed between the parties that the employee has more than two years of relevant experience;
③ The employer argues that it has discretion to shorten the probationary period, but in light of the structure of the rules of employment, the wording of the relevant provision, and the purpose of probationary employment, it is clear that no probationary period is to be set for employees with at least two years of experience;
④ Considering together that the probationary period stipulated in the employment contract is null and void under Article 97 of the Labor Standards Act, it cannot be regarded that a probationary employment contract was concluded.
B. Whether the dismissal was justified
① Since this does not constitute a probationary employment contract, the general legal principles on dismissal apply strictly;
② The burden of proof regarding the just cause for dismissal lies with the employer asserting that the dismissal is justified;
③ The grounds for dismissal are subjective, the existence of each specific ground is not proven, there are no objective criteria for evaluating the employee’s job performance, and even if such criteria exist, their application is not fair;
④ Considering together that, based on the reasons presented by the employer, no grounds can be found that would amount to a reason for dismissal so serious as to make it impossible to continue the employment relationship, the dismissal is unfair.
3. Summary of Decision
A. Summary of the Labor Relations Commission’s Reasoning
A. Whether this constituted a probationary employment contract
① The rules of employment provide that no probationary period is required for skilled workers with at least two years of experience in the relevant work;
② It is undisputed between the parties that the employee has more than two years of relevant experience;
③ The employer argues that it has discretion to shorten the probationary period, but in light of the structure of the rules of employment, the wording of the relevant provision, and the purpose of probationary employment, it is clear that no probationary period is to be set for employees with at least two years of experience;
④ Considering together that the probationary period stipulated in the employment contract is null and void under Article 97 of the Labor Standards Act, it cannot be regarded that a probationary employment contract was concluded.
B. Whether the dismissal was justified
① Since this does not constitute a probationary employment contract, the general legal principles on dismissal apply strictly;
② The burden of proof regarding the just cause for dismissal lies with the employer asserting that the dismissal is justified;
③ The grounds for dismissal are subjective, the existence of each specific ground is not proven, there are no objective criteria for evaluating the employee’s job performance, and even if such criteria exist, their application is not fair;
④ Considering together that, based on the reasons presented by the employer, no grounds can be found that would amount to a reason for dismissal so serious as to make it impossible to continue the employment relationship, the dismissal is unfair. /
[See More Related Decisions]
- “Dismissal Rejected (Non‑appearance at Hearing)” – Unfair Dismissal Decision – Date of decision: – Case number: Dismissal of application
- “Failure to Meet Requirements for Redundancy Dismissal (Workout Company)” – Unfair Dismissal Decision
- “No Formation of Hiring Commitment (Absence of Offer Letter)” – Unfair Dismissal Decision – Date of decision: – Case number: First-instance decision upheld
[Tags]
Unfair dismissal, misidentification of probationary dismissal (rule excluding probation for employees with 2+ years’ experience), 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “‘Personnel Transfer (Direct → Defense Against Termination)’ Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to misidentification of probationary dismissal (rule excluding probation for employees with 2+ years’ experience) can be viewed together in the “List of Decisions Related to Misidentification of Probationary Dismissal (Rule Excluding Probation for Employees with 2+ Years’ Experience).”
※ Korean version of this case: Korean article
This case is a decision in which the issue of “misidentification of probationary dismissal (rule excluding probation for employees with 2+ years’ experience)” was resolved by upholding the first-instance decision.
Decision body: National Labor Relations Commission
2025BuHae1285 ○ ○ ○ Application for Reexamination for Remedy of Unfair Dismissal
2025.12.15 · Result: First-instance decision upheld
Summary of key issues:
A. Whether this constituted a probationary employment contract
① The rules of employment provide that no probationary period is required for skilled workers with at least two years of experience in the relevant work;
② It is undisputed between the parties that the employee has more than two years of relevant experience;
③ The employer argues that it has discretion to shorten the probationary period, but in light of the structure of the rules of employment, the wording of the relevant provision, and the purpose of probationary employment, it is to be interpreted that no probationary period shall be set for employees with at least two years of experience;
④ …
1. Legal Implications
Ⅰ. Case Overview
In this case, the employer entered into an employment contract with the employee on the premise of a probationary/trial period, and then notified dismissal on the assumption that the employee was a probationary worker. The employee applied to the Labor Relations Commission for a remedy, claiming unfair dismissal.
The first-instance Labor Relations Commission found in favor of the employee and held that the dismissal was unfair. The employer filed for reexamination with the National Labor Relations Commission, but the first-instance decision was upheld.
Ⅱ. Summary of Issues
The issue in this case is:
“Where the rules of employment stipulate that no probationary period shall be set for employees with at least two years of relevant experience, but a separate probationary period is specified in the employment contract, can this be regarded as a probationary employment contract? If it is not a probationary employment contract, is the dismissal in this case justified under the general legal principles governing dismissal?”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case noted that the rules of employment explicitly state that no probationary period is required for skilled workers with at least two years of experience in the relevant work, that the employee in fact had more than two years of relevant experience, that in light of the structure of the rules of employment and the purpose of the probationary system it is to be interpreted that no probationary period shall be set for employees with at least two years of experience, and that the probationary period specified in the employment contract appears to be null and void under Article 97 of the Labor Standards Act.
On this basis, the panel held that no probationary employment contract had been concluded between the employee and the employer.
The dismissal in this case was therefore regarded as a dismissal of an ordinary (non‑probationary) employee, to which the strict legal principles restricting dismissal must apply.
Furthermore, the panel pointed out that the burden of proof regarding the just cause for dismissal lies with the employer, that most of the grounds for dismissal asserted by the employer remained at the level of subjective assessments of “lack of competence” and that the existence of each specific ground was not objectively proven, that there were no objective criteria for evaluating the employee’s job performance or that their application was not fair, and that, based on the reasons presented, it was difficult to view the case as involving such serious grounds as to make it impossible to continue the employment relationship.
Accordingly, the panel held that the dismissal in this case was unfair.
Ⅳ. Practical Points (From the Employee’s Perspective)
Employees should first check whether, given their experience and qualifications, the provisions in the rules of employment excluding probation/trial periods apply to them. If, despite being an experienced worker for whom the rules of employment stipulate that no probationary period shall be set, a probation or trial period is written into the employment contract, that part may be null and void under Article 97 of the Labor Standards Act, and the dismissal should be contested as a general dismissal, not as a probationary dismissal.
In addition, where dismissal is based only on abstract grounds such as “lack of competence” or “unsuitability for the job,” employees should keep in mind that the employer must prove objective evaluation criteria and specific facts, and consider filing an application with the Labor Relations Commission for a remedy for unfair dismissal on that basis.
Ⅴ. Practical Points (From the Employer’s/Company’s Perspective)
From the employer’s perspective, it is very important to ensure that the rules of employment and the contents of individual employment contracts do not conflict. In particular, when operating probationary/trial systems, if there is a rule excluding probation for experienced workers, HR and recruitment practices must be managed consistently so that probationary periods are not arbitrarily set in individual employment contracts.
Moreover, whether the employee is on probation or not, if dismissal is being considered, the employer should establish clear, prior evaluation criteria for job performance and work attitude, and accumulate specific facts and materials in accordance with those criteria. Otherwise, it will be difficult to have the objective and reasonable grounds for dismissal, and its social acceptability, recognized by the Labor Relations Commission or the courts.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether this constituted a probationary employment contract
① The rules of employment provide that no probationary period is required for skilled workers with at least two years of experience in the relevant work;
② It is undisputed between the parties that the employee has more than two years of relevant experience;
③ The employer argues that it has discretion to shorten the probationary period, but in light of the structure of the rules of employment, the wording of the relevant provision, and the purpose of probationary employment, it is clear that no probationary period is to be set for employees with at least two years of experience;
④ Considering together that the probationary period stipulated in the employment contract is null and void under Article 97 of the Labor Standards Act, it cannot be regarded that a probationary employment contract was concluded.
B. Whether the dismissal was justified
① Since this does not constitute a probationary employment contract, the general legal principles on dismissal apply strictly;
② The burden of proof regarding the just cause for dismissal lies with the employer asserting that the dismissal is justified;
③ The grounds for dismissal are subjective, the existence of each specific ground is not proven, there are no objective criteria for evaluating the employee’s job performance, and even if such criteria exist, their application is not fair;
④ Considering together that, based on the reasons presented by the employer, no grounds can be found that would amount to a reason for dismissal so serious as to make it impossible to continue the employment relationship, the dismissal is unfair.
3. Summary of Decision
A. Summary of the Labor Relations Commission’s Reasoning
A. Whether this constituted a probationary employment contract
① The rules of employment provide that no probationary period is required for skilled workers with at least two years of experience in the relevant work;
② It is undisputed between the parties that the employee has more than two years of relevant experience;
③ The employer argues that it has discretion to shorten the probationary period, but in light of the structure of the rules of employment, the wording of the relevant provision, and the purpose of probationary employment, it is clear that no probationary period is to be set for employees with at least two years of experience;
④ Considering together that the probationary period stipulated in the employment contract is null and void under Article 97 of the Labor Standards Act, it cannot be regarded that a probationary employment contract was concluded.
B. Whether the dismissal was justified
① Since this does not constitute a probationary employment contract, the general legal principles on dismissal apply strictly;
② The burden of proof regarding the just cause for dismissal lies with the employer asserting that the dismissal is justified;
③ The grounds for dismissal are subjective, the existence of each specific ground is not proven, there are no objective criteria for evaluating the employee’s job performance, and even if such criteria exist, their application is not fair;
④ Considering together that, based on the reasons presented by the employer, no grounds can be found that would amount to a reason for dismissal so serious as to make it impossible to continue the employment relationship, the dismissal is unfair. /
[See More Related Decisions]
- “Dismissal Rejected (Non‑appearance at Hearing)” – Unfair Dismissal Decision – Date of decision: – Case number: Dismissal of application
- “Failure to Meet Requirements for Redundancy Dismissal (Workout Company)” – Unfair Dismissal Decision
- “No Formation of Hiring Commitment (Absence of Offer Letter)” – Unfair Dismissal Decision – Date of decision: – Case number: First-instance decision upheld
[Tags]
Unfair dismissal, misidentification of probationary dismissal (rule excluding probation for employees with 2+ years’ experience), 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 one of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “‘Personnel Transfer (Direct → Defense Against Termination)’ Unfair Dismissal Decision,” in a new window.
※ The list of decisions related to misidentification of probationary dismissal (rule excluding probation for employees with 2+ years’ experience) can be viewed together in the “List of Decisions Related to Misidentification of Probationary Dismissal (Rule Excluding Probation for Employees with 2+ Years’ Experience).”
※ Korean version of this case: Korean article
