Corporate trends / Performance record
Unfair Dismissal Case Concerning Exercise of Probationary Termination Right (Three Consecutive Poor Evaluations) (Unfair Dismissal 216)
- Date2026/02/19 04:09
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[Case Information]
This case concerns a decision in which the employer prevailed (application dismissed) on the issue of “exercise of probationary termination right (three consecutive poor evaluations).”
Decision body: Seoul Regional Labor Relations Commission
2025Buhae9102 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.12.10 · Case result: Dismissed
Summary of key issues:
A. Whether the worker was a probationary employee
The employment contract executed by the worker and the employer stated: “The first three months after joining the company shall be a probationary period. During the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period.”
1. Legal Implications
Ⅰ. Case Overview
This case concerns a worker who was denied regular employment on the ground that he received low scores in performance evaluations during the probationary period and who therefore filed an application for remedy for unfair dismissal. The Seoul Regional Labor Relations Commission examined, focusing on the contents of the employment contract and the process of evaluation and notification, whether the worker fell under the category of a probationary employee and whether the refusal to grant regular employment was justified. As a result, the Commission accepted the employer’s arguments and dismissed the worker’s application for remedy for unfair dismissal.
The issue in this case is whether “a refusal to grant regular employment based on an employment contract specifying a probationary period and on multiple (three) evaluation results constitutes a lawful dismissal under the Labor Standards Act.”
Ⅱ. Summary of Issues
The issues in this case are, first, whether the worker can be regarded as having been hired as a “probationary employee,” rather than as a simple regular employee. Second, even if the worker is deemed a probationary employee, whether the employer’s refusal to grant regular employment on the ground that the worker received significantly low scores in three evaluations constitutes an abuse of managerial discretion amounting to unfair dismissal, or whether it can be regarded as a legitimate exercise of the probationary termination right.
Ⅲ. Gist of the Labor Relations Commission’s Decision
The panel in this case found that the worker was a probationary employee, noting that the employment contract clearly stated, “The first three months after joining the company shall be a probationary period, and during the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period,” and that the worker had personally signed the contract.
The panel further found that it was difficult to conclude that the employer’s evaluation exceeded the bounds of managerial discretion, considering comprehensively that three separate evaluations were conducted during the probationary period, that the evaluation contents appeared specific and objective, that the worker received significantly low scores in each of the evaluations, and that the employer provided written notices setting out the evaluation results in concrete terms.
The panel held that the dismissal in this case constituted an exercise of the termination right reserved during the probationary period, based on objective evaluation materials and written notification, and therefore could not readily be deemed unlawful or manifestly unreasonable in light of social norms.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, it is essential to check how the “probationary period” and the “possibility of refusal of regular employment” are set out in the employment contract executed upon joining the company. A refusal to grant regular employment to a probationary employee also constitutes a dismissal, so it is necessary to carefully examine whether the evaluation criteria, procedures, and notification contents are specific and objective, and whether they are manifestly unreasonable when compared with the worker’s actual work attitude and abilities.
In addition, where the probationary evaluation is merely formal, where there are indications that scores were adjusted ex post, or where there is clearly unreasonable discrimination compared with other probationary employees, it is possible to challenge whether there has been an abuse of managerial discretion. Workers should therefore retain relevant emails, evaluation sheets, and records of interviews on a regular basis.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s side, since the existence and scope of a probationary employment contract become the starting point of any dispute, it is important to clearly set out in the employment contract the probationary period, evaluation items and criteria, and the possibility of refusal of regular employment, and to obtain the worker’s signature. In addition, probationary evaluations should be conducted at least two to three times, with evaluation items specified in detail and the facts underlying each item recorded, in order to reduce future disputes over alleged abuse of managerial discretion.
When notifying the evaluation results in writing, it is advisable to record not only the scores but also the specific grounds for finding the worker unsuitable, and, where possible, to keep a record of the contents of interviews with the worker being evaluated. These will serve as key evidence in future proceedings before the Labor Relations Commission to prove that the employer’s action was a legitimate exercise of the probationary termination right, rather than an unfair dismissal.
This decision reaffirms the established legal principle that a refusal to grant regular employment to a probationary employee also constitutes a “dismissal” under Article 23 of the Labor Standards Act, but that, given the nature of probation, a broader scope of employer discretion may be recognized than in ordinary dismissals. However, for such discretion to be recognized, both workers and employers should bear in mind that the basis for the establishment of the probationary employment relationship and the evaluation and notification process must be clearly documented.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the worker was a probationary employee
In light of the fact that the employment contract executed by the worker and the employer clearly stated, “The first three months after joining the company shall be a probationary period, and during the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period,” and that the worker personally signed the employment contract, the worker is deemed to be a probationary employee.
B. Whether the refusal to grant regular employment was justified
Taking into comprehensive consideration that three evaluations were conducted, that the evaluation contents appeared specific and objective, and that the worker received significantly low scores in all three evaluations, it cannot be concluded that the employer’s evaluation results were unfair to the extent of exceeding managerial discretion. Moreover, since the employer notified the worker in writing by means of a notice that set out the evaluation results in detail, the refusal to grant regular employment to the worker cannot be considered unlawful or to constitute an unfair dismissal.
3. Gist of the Decision
A. Gist of the Labor Relations Commission’s Decision
A. Whether the worker was a probationary employee
In light of the fact that the employment contract executed by the worker and the employer clearly stated, “The first three months after joining the company shall be a probationary period, and during the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period,” and that the worker personally signed the employment contract, the worker is deemed to be a probationary employee.
B. Whether the refusal to grant regular employment was justified
Taking into comprehensive consideration that three evaluations were conducted, that the evaluation contents appeared specific and objective, and that the worker received significantly low scores in all three evaluations, it cannot be concluded that the employer’s evaluation results were unfair to the extent of exceeding managerial discretion. Moreover, since the employer notified the worker in writing by means of a notice that set out the evaluation results in detail, the refusal to grant regular employment to the worker cannot be considered unlawful or to constitute an unfair dismissal.
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Probationary Termination (Acceptance of Resignation Recommendation)’”
- “Unfair Dismissal Decision Concerning ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case result: First-instance decision upheld
- “Unfair Dismissal Decision Concerning ‘Expression of Intent to Resign (Resignation Remark Made by Telephone)’”
[Tags]
Unfair dismissal, exercise of probationary termination right (three consecutive poor evaluations), 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 part of Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Probationary Termination (Acceptance of Resignation Recommendation)’,” in a new window.
※ The list of decisions related to exercise of probationary termination right (three consecutive poor evaluations) can be viewed together on the “List of Decisions Related to Exercise of Probationary Termination Right (Three Consecutive Poor Evaluations).”
※ Korean version of this case: Korean article
This case concerns a decision in which the employer prevailed (application dismissed) on the issue of “exercise of probationary termination right (three consecutive poor evaluations).”
Decision body: Seoul Regional Labor Relations Commission
2025Buhae9102 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2025.12.10 · Case result: Dismissed
Summary of key issues:
A. Whether the worker was a probationary employee
The employment contract executed by the worker and the employer stated: “The first three months after joining the company shall be a probationary period. During the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period.”
1. Legal Implications
Ⅰ. Case Overview
This case concerns a worker who was denied regular employment on the ground that he received low scores in performance evaluations during the probationary period and who therefore filed an application for remedy for unfair dismissal. The Seoul Regional Labor Relations Commission examined, focusing on the contents of the employment contract and the process of evaluation and notification, whether the worker fell under the category of a probationary employee and whether the refusal to grant regular employment was justified. As a result, the Commission accepted the employer’s arguments and dismissed the worker’s application for remedy for unfair dismissal.
The issue in this case is whether “a refusal to grant regular employment based on an employment contract specifying a probationary period and on multiple (three) evaluation results constitutes a lawful dismissal under the Labor Standards Act.”
Ⅱ. Summary of Issues
The issues in this case are, first, whether the worker can be regarded as having been hired as a “probationary employee,” rather than as a simple regular employee. Second, even if the worker is deemed a probationary employee, whether the employer’s refusal to grant regular employment on the ground that the worker received significantly low scores in three evaluations constitutes an abuse of managerial discretion amounting to unfair dismissal, or whether it can be regarded as a legitimate exercise of the probationary termination right.
Ⅲ. Gist of the Labor Relations Commission’s Decision
The panel in this case found that the worker was a probationary employee, noting that the employment contract clearly stated, “The first three months after joining the company shall be a probationary period, and during the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period,” and that the worker had personally signed the contract.
The panel further found that it was difficult to conclude that the employer’s evaluation exceeded the bounds of managerial discretion, considering comprehensively that three separate evaluations were conducted during the probationary period, that the evaluation contents appeared specific and objective, that the worker received significantly low scores in each of the evaluations, and that the employer provided written notices setting out the evaluation results in concrete terms.
The panel held that the dismissal in this case constituted an exercise of the termination right reserved during the probationary period, based on objective evaluation materials and written notification, and therefore could not readily be deemed unlawful or manifestly unreasonable in light of social norms.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, it is essential to check how the “probationary period” and the “possibility of refusal of regular employment” are set out in the employment contract executed upon joining the company. A refusal to grant regular employment to a probationary employee also constitutes a dismissal, so it is necessary to carefully examine whether the evaluation criteria, procedures, and notification contents are specific and objective, and whether they are manifestly unreasonable when compared with the worker’s actual work attitude and abilities.
In addition, where the probationary evaluation is merely formal, where there are indications that scores were adjusted ex post, or where there is clearly unreasonable discrimination compared with other probationary employees, it is possible to challenge whether there has been an abuse of managerial discretion. Workers should therefore retain relevant emails, evaluation sheets, and records of interviews on a regular basis.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s side, since the existence and scope of a probationary employment contract become the starting point of any dispute, it is important to clearly set out in the employment contract the probationary period, evaluation items and criteria, and the possibility of refusal of regular employment, and to obtain the worker’s signature. In addition, probationary evaluations should be conducted at least two to three times, with evaluation items specified in detail and the facts underlying each item recorded, in order to reduce future disputes over alleged abuse of managerial discretion.
When notifying the evaluation results in writing, it is advisable to record not only the scores but also the specific grounds for finding the worker unsuitable, and, where possible, to keep a record of the contents of interviews with the worker being evaluated. These will serve as key evidence in future proceedings before the Labor Relations Commission to prove that the employer’s action was a legitimate exercise of the probationary termination right, rather than an unfair dismissal.
This decision reaffirms the established legal principle that a refusal to grant regular employment to a probationary employee also constitutes a “dismissal” under Article 23 of the Labor Standards Act, but that, given the nature of probation, a broader scope of employer discretion may be recognized than in ordinary dismissals. However, for such discretion to be recognized, both workers and employers should bear in mind that the basis for the establishment of the probationary employment relationship and the evaluation and notification process must be clearly documented.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the worker was a probationary employee
In light of the fact that the employment contract executed by the worker and the employer clearly stated, “The first three months after joining the company shall be a probationary period, and during the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period,” and that the worker personally signed the employment contract, the worker is deemed to be a probationary employee.
B. Whether the refusal to grant regular employment was justified
Taking into comprehensive consideration that three evaluations were conducted, that the evaluation contents appeared specific and objective, and that the worker received significantly low scores in all three evaluations, it cannot be concluded that the employer’s evaluation results were unfair to the extent of exceeding managerial discretion. Moreover, since the employer notified the worker in writing by means of a notice that set out the evaluation results in detail, the refusal to grant regular employment to the worker cannot be considered unlawful or to constitute an unfair dismissal.
3. Gist of the Decision
A. Gist of the Labor Relations Commission’s Decision
A. Whether the worker was a probationary employee
In light of the fact that the employment contract executed by the worker and the employer clearly stated, “The first three months after joining the company shall be a probationary period, and during the probationary period, the worker’s job suitability and adaptability to the company shall be assessed, and if the worker is found not to meet the hiring standards, the employment contract may be terminated even during that period,” and that the worker personally signed the employment contract, the worker is deemed to be a probationary employee.
B. Whether the refusal to grant regular employment was justified
Taking into comprehensive consideration that three evaluations were conducted, that the evaluation contents appeared specific and objective, and that the worker received significantly low scores in all three evaluations, it cannot be concluded that the employer’s evaluation results were unfair to the extent of exceeding managerial discretion. Moreover, since the employer notified the worker in writing by means of a notice that set out the evaluation results in detail, the refusal to grant regular employment to the worker cannot be considered unlawful or to constitute an unfair dismissal.
[See More Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Probationary Termination (Acceptance of Resignation Recommendation)’”
- “Unfair Dismissal Decision Concerning ‘Non-Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case result: First-instance decision upheld
- “Unfair Dismissal Decision Concerning ‘Expression of Intent to Resign (Resignation Remark Made by Telephone)’”
[Tags]
Unfair dismissal, exercise of probationary termination right (three consecutive poor evaluations), 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 part of Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ You can view the previous article, “Unfair Dismissal Decision Concerning ‘Probationary Termination (Acceptance of Resignation Recommendation)’,” in a new window.
※ The list of decisions related to exercise of probationary termination right (three consecutive poor evaluations) can be viewed together on the “List of Decisions Related to Exercise of Probationary Termination Right (Three Consecutive Poor Evaluations).”
※ Korean version of this case: Korean article
