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Non-Existence of Legitimate Expectation of Renewal (Security Guard Rehired on a Post‑Retirement Fixed-Term Contract) – Unfair Dismissal Decision (Unfair Dismissal 312)
- Date2026/03/24 04:09
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[Case Information]
This case is a decision that was concluded with the first-instance decision being upheld on the issue of “non-existence of legitimate expectation of renewal (security guard rehired on a post‑retirement fixed-term contract).”
Decision Body: National Labor Relations Commission
2025Buhae1441 ○ ○ ○ Application for Reconsideration of Remedy for Unfair Dismissal
Decision date: 2026.01.09 · Result: First-instance decision upheld
Summary of key issues: (1) The employee reached the mandatory retirement age at the ○○5 Complex Apartment, submitted a resignation letter, worked until 31 December 2024, then executed with the employer a three‑month fixed-term “choktack” (post‑retirement reemployment) contract and began working at the ○○3 Complex Apartment from 1 January 2025; (2) the employee argued that he did not submit the resignation letter with a genuine intent to resign, but the ○○5 Complex Apartment operates a mandatory retirement system, and the resignation letter appears to have been required by the employer as a practice to prevent potential legal disputes arising upon passing the retirement age…
1. Legal Implications
Ⅰ. Case Overview
This unfair dismissal case before the Labor Relations Commission concerns a security guard at an apartment complex who, upon reaching the mandatory retirement age, submitted a resignation letter and then was rehired at another complex on a post‑retirement fixed-term “choktack” contract. That contract was later terminated upon expiry of its term. This is a decision reviewed by Labor Law Firm Law&.
The employee argued that, in substance, his employment had continued even after mandatory retirement, and therefore the employer’s reliance on expiry of the term constituted an unfair dismissal. The employer countered that the existing employment relationship had ended upon reaching the mandatory retirement age, and that the subsequent “choktack” position was a short-term fixed-term contract with no obligation to renew.
Ⅱ. Issues
The key issue in this case is:
“Where, after reaching the mandatory retirement age, an employee submits a resignation letter, receives full settlement of severance pay, and then enters into a new post‑retirement fixed-term ‘choktack’ employment contract, (i) whether the employee has a legitimate expectation of renewal of that fixed-term employment contract, and (ii) whether termination of the employment relationship on the ground of expiry of the contract term constitutes an unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel noted that the employee submitted a resignation letter at the ○○5 Complex Apartment upon reaching the mandatory retirement age and received full settlement of severance pay as of 31 December 2024. The complex operates a mandatory retirement system, and the submission of a resignation letter appears to be a customary practice to prevent legal disputes that may arise upon passing the retirement age. The resignation letter was handwritten by the employee without coercion or deceit by the employer. Accordingly, the prior employment relationship had ended, and as of 1 January 2025 the employee was newly hired at the ○○3 Complex Apartment on a three‑month “choktack” fixed-term contract.
The panel further noted that, while working at the ○○3 Complex, the employee experienced health issues, including receiving hospital treatment due to dizziness, raising concerns about his ability to perform his duties. The residents’ representative council requested replacement of the security guard due to health concerns, and it was difficult for the employer to ignore this request. The employer proposed an alternative assignment at another site located in Yeongdeungpo‑gu, but the employee refused.
Taking all of these circumstances into account, the panel held that it was difficult to recognize that the employee had a legitimate expectation that the contract would be renewed in the future, and therefore the termination of the employment relationship on the ground of expiry of the fixed term could not be regarded as an unfair dismissal.
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, it is important to clearly recognize that a resignation letter submitted upon reaching the mandatory retirement age is not a mere formality but a manifestation of intent to terminate the employment contract, which becomes effective once accepted by the employer.
In particular, where an employee retires upon reaching the mandatory retirement age, receives full settlement of severance pay, and then enters into a new post‑retirement “choktack” or fixed-term employment contract, that relationship will, absent specific rules or established practices to the contrary, be treated as a new fixed-term employment contract rather than an extension of the prior employment relationship. In such circumstances, the threshold for recognizing a legitimate expectation of renewal becomes significantly higher.
In addition, where concerns are raised about the employee’s ability to perform duties due to health conditions, it may be more advantageous in any subsequent dispute not to unconditionally refuse alternative worksite assignments proposed by the employer. Instead, the employee should clearly present medical opinions and his or her intention to continue working, and seek to negotiate reasonable alternatives.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, when operating a mandatory retirement system, it is necessary to clearly stipulate in the rules of employment and employment contracts that the employment relationship automatically terminates upon reaching the mandatory retirement age, and to document procedures such as acceptance of resignation letters and settlement of severance pay at the time of retirement.
In particular, post‑retirement “choktack” reemployment is, in essence, a new fixed-term employment contract. The contract period and criteria for renewal or non‑renewal of “choktack” contracts should be clearly explained and documented in writing in order to reduce unnecessary unfair dismissal disputes.
Furthermore, where objective circumstances such as health problems make it difficult to renew the contract after expiry of the term, the employer should secure materials that record and substantiate such circumstances (e.g., medical records, contents of requests from the residents’ representative council), and, where possible, document the fact that reasonable alternatives such as proposals for assignment to another worksite were offered. Doing so will increase the likelihood that the Labor Relations Commission will recognize the legitimacy of the employer’s actions.
2. Matters Decided
A. Case Overview and Procedural History
(1) The employee reached the mandatory retirement age at the ○○5 Complex Apartment, submitted a resignation letter, worked until 31 December 2024, and then executed with the employer a three‑month fixed-term “choktack” employment contract and began working at the ○○3 Complex Apartment from 1 January 2025.
(2) The employee asserted that he did not submit the resignation letter with a genuine intent to resign. However, the ○○5 Complex Apartment is subject to a mandatory retirement system, and it appears that the employer requested submission of the resignation letter to prevent potential legal disputes that could arise upon passing the retirement age. The employee, being aware of contractual practices in the security services sector, handwritten and submitted the resignation letter without coercion or deceit by the employer.
(3) The employee retired as of 31 December 2024 upon reaching the mandatory retirement age and received full settlement of severance pay. Therefore, the employment contract as of 1 January 2025 was a newly concluded contract after termination of the prior employment relationship, and cannot be regarded as an extension of the previous employment relationship.
(4) While working at the ○○3 Complex Apartment, the employee received hospital treatment due to dizziness on 19 January 2025, and on 24 March 2025 he again showed health concerns, such as collapsing during work. In these circumstances, it cannot be considered unfair that the employer terminated the employment relationship on the ground of expiry of the contract term.
(5) The employer found it difficult to reject the residents’ representative council’s request to replace the security guard due to concerns about the employee’s health. In response, the employer, as a compromise, proposed that the employee work at a site located in Yeongdeungpo‑gu, but the employee refused. Considering all of these circumstances, it is difficult to recognize that the employee had a legitimate expectation of renewal of the employment contract.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
(1) The employee reached the mandatory retirement age at the ○○5 Complex Apartment, submitted a resignation letter, worked until 31 December 2024, and then executed with the employer a three‑month fixed-term “choktack” employment contract and began working at the ○○3 Complex Apartment from 1 January 2025.
(2) The employee asserted that he did not submit the resignation letter with a genuine intent to resign. However, the ○○5 Complex Apartment is subject to a mandatory retirement system, and it appears that the employer requested submission of the resignation letter to prevent potential legal disputes that could arise upon passing the retirement age. The employee, being aware of contractual practices in the security services sector, handwritten and submitted the resignation letter without coercion or deceit by the employer.
(3) The employee retired as of 31 December 2024 upon reaching the mandatory retirement age and received full settlement of severance pay. Therefore, the employment contract as of 1 January 2025 was a newly concluded contract after termination of the prior employment relationship, and cannot be regarded as an extension of the previous employment relationship.
(4) While working at the ○○3 Complex Apartment, the employee received hospital treatment due to dizziness on 19 January 2025, and on 24 March 2025 he again showed health concerns, such as collapsing during work. In these circumstances, it cannot be considered unfair that the employer terminated the employment relationship on the ground of expiry of the contract term.
(5) The employer found it difficult to reject the residents’ representative council’s request to replace the security guard due to concerns about the employee’s health. In response, the employer, as a compromise, proposed that the employee work at a site located in Yeongdeungpo‑gu, but the employee refused. Considering all of these circumstances, it is difficult to recognize that the employee had a legitimate expectation of renewal of the employment contract. /
[See More Related Decisions]
- “‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’ – Unfair Dismissal Decision” – Decision date: – Case result: First-instance decision upheld
- “‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’ – Unfair Dismissal Decision”
- “‘Denial of Employee Status (Real Estate Brokerage Commission 50%)’ – Unfair Dismissal Decision”
[Tags]
Unfair dismissal, non‑existence of legitimate expectation of renewal (security guard rehired on a post‑retirement fixed-term contract), refusal to renew fixed-term contract, mandatory retirement, 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, “‘Denial of Employee Status (Real Estate Brokerage Commission 50%)’ – Unfair Dismissal Decision,” can be viewed in a new window.
※ A list of decisions related to non‑existence of legitimate expectation of renewal (security guard rehired on a post‑retirement fixed-term contract) can be found under “List of Decisions on Non‑Existence of Legitimate Expectation of Renewal (Security Guard Rehired on a Post‑Retirement Fixed-Term Contract).”
※ Korean version of this case: Korean article
This case is a decision that was concluded with the first-instance decision being upheld on the issue of “non-existence of legitimate expectation of renewal (security guard rehired on a post‑retirement fixed-term contract).”
Decision Body: National Labor Relations Commission
2025Buhae1441 ○ ○ ○ Application for Reconsideration of Remedy for Unfair Dismissal
Decision date: 2026.01.09 · Result: First-instance decision upheld
Summary of key issues: (1) The employee reached the mandatory retirement age at the ○○5 Complex Apartment, submitted a resignation letter, worked until 31 December 2024, then executed with the employer a three‑month fixed-term “choktack” (post‑retirement reemployment) contract and began working at the ○○3 Complex Apartment from 1 January 2025; (2) the employee argued that he did not submit the resignation letter with a genuine intent to resign, but the ○○5 Complex Apartment operates a mandatory retirement system, and the resignation letter appears to have been required by the employer as a practice to prevent potential legal disputes arising upon passing the retirement age…
1. Legal Implications
Ⅰ. Case Overview
This unfair dismissal case before the Labor Relations Commission concerns a security guard at an apartment complex who, upon reaching the mandatory retirement age, submitted a resignation letter and then was rehired at another complex on a post‑retirement fixed-term “choktack” contract. That contract was later terminated upon expiry of its term. This is a decision reviewed by Labor Law Firm Law&.
The employee argued that, in substance, his employment had continued even after mandatory retirement, and therefore the employer’s reliance on expiry of the term constituted an unfair dismissal. The employer countered that the existing employment relationship had ended upon reaching the mandatory retirement age, and that the subsequent “choktack” position was a short-term fixed-term contract with no obligation to renew.
Ⅱ. Issues
The key issue in this case is:
“Where, after reaching the mandatory retirement age, an employee submits a resignation letter, receives full settlement of severance pay, and then enters into a new post‑retirement fixed-term ‘choktack’ employment contract, (i) whether the employee has a legitimate expectation of renewal of that fixed-term employment contract, and (ii) whether termination of the employment relationship on the ground of expiry of the contract term constitutes an unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel noted that the employee submitted a resignation letter at the ○○5 Complex Apartment upon reaching the mandatory retirement age and received full settlement of severance pay as of 31 December 2024. The complex operates a mandatory retirement system, and the submission of a resignation letter appears to be a customary practice to prevent legal disputes that may arise upon passing the retirement age. The resignation letter was handwritten by the employee without coercion or deceit by the employer. Accordingly, the prior employment relationship had ended, and as of 1 January 2025 the employee was newly hired at the ○○3 Complex Apartment on a three‑month “choktack” fixed-term contract.
The panel further noted that, while working at the ○○3 Complex, the employee experienced health issues, including receiving hospital treatment due to dizziness, raising concerns about his ability to perform his duties. The residents’ representative council requested replacement of the security guard due to health concerns, and it was difficult for the employer to ignore this request. The employer proposed an alternative assignment at another site located in Yeongdeungpo‑gu, but the employee refused.
Taking all of these circumstances into account, the panel held that it was difficult to recognize that the employee had a legitimate expectation that the contract would be renewed in the future, and therefore the termination of the employment relationship on the ground of expiry of the fixed term could not be regarded as an unfair dismissal.
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, it is important to clearly recognize that a resignation letter submitted upon reaching the mandatory retirement age is not a mere formality but a manifestation of intent to terminate the employment contract, which becomes effective once accepted by the employer.
In particular, where an employee retires upon reaching the mandatory retirement age, receives full settlement of severance pay, and then enters into a new post‑retirement “choktack” or fixed-term employment contract, that relationship will, absent specific rules or established practices to the contrary, be treated as a new fixed-term employment contract rather than an extension of the prior employment relationship. In such circumstances, the threshold for recognizing a legitimate expectation of renewal becomes significantly higher.
In addition, where concerns are raised about the employee’s ability to perform duties due to health conditions, it may be more advantageous in any subsequent dispute not to unconditionally refuse alternative worksite assignments proposed by the employer. Instead, the employee should clearly present medical opinions and his or her intention to continue working, and seek to negotiate reasonable alternatives.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s perspective, when operating a mandatory retirement system, it is necessary to clearly stipulate in the rules of employment and employment contracts that the employment relationship automatically terminates upon reaching the mandatory retirement age, and to document procedures such as acceptance of resignation letters and settlement of severance pay at the time of retirement.
In particular, post‑retirement “choktack” reemployment is, in essence, a new fixed-term employment contract. The contract period and criteria for renewal or non‑renewal of “choktack” contracts should be clearly explained and documented in writing in order to reduce unnecessary unfair dismissal disputes.
Furthermore, where objective circumstances such as health problems make it difficult to renew the contract after expiry of the term, the employer should secure materials that record and substantiate such circumstances (e.g., medical records, contents of requests from the residents’ representative council), and, where possible, document the fact that reasonable alternatives such as proposals for assignment to another worksite were offered. Doing so will increase the likelihood that the Labor Relations Commission will recognize the legitimacy of the employer’s actions.
2. Matters Decided
A. Case Overview and Procedural History
(1) The employee reached the mandatory retirement age at the ○○5 Complex Apartment, submitted a resignation letter, worked until 31 December 2024, and then executed with the employer a three‑month fixed-term “choktack” employment contract and began working at the ○○3 Complex Apartment from 1 January 2025.
(2) The employee asserted that he did not submit the resignation letter with a genuine intent to resign. However, the ○○5 Complex Apartment is subject to a mandatory retirement system, and it appears that the employer requested submission of the resignation letter to prevent potential legal disputes that could arise upon passing the retirement age. The employee, being aware of contractual practices in the security services sector, handwritten and submitted the resignation letter without coercion or deceit by the employer.
(3) The employee retired as of 31 December 2024 upon reaching the mandatory retirement age and received full settlement of severance pay. Therefore, the employment contract as of 1 January 2025 was a newly concluded contract after termination of the prior employment relationship, and cannot be regarded as an extension of the previous employment relationship.
(4) While working at the ○○3 Complex Apartment, the employee received hospital treatment due to dizziness on 19 January 2025, and on 24 March 2025 he again showed health concerns, such as collapsing during work. In these circumstances, it cannot be considered unfair that the employer terminated the employment relationship on the ground of expiry of the contract term.
(5) The employer found it difficult to reject the residents’ representative council’s request to replace the security guard due to concerns about the employee’s health. In response, the employer, as a compromise, proposed that the employee work at a site located in Yeongdeungpo‑gu, but the employee refused. Considering all of these circumstances, it is difficult to recognize that the employee had a legitimate expectation of renewal of the employment contract.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
(1) The employee reached the mandatory retirement age at the ○○5 Complex Apartment, submitted a resignation letter, worked until 31 December 2024, and then executed with the employer a three‑month fixed-term “choktack” employment contract and began working at the ○○3 Complex Apartment from 1 January 2025.
(2) The employee asserted that he did not submit the resignation letter with a genuine intent to resign. However, the ○○5 Complex Apartment is subject to a mandatory retirement system, and it appears that the employer requested submission of the resignation letter to prevent potential legal disputes that could arise upon passing the retirement age. The employee, being aware of contractual practices in the security services sector, handwritten and submitted the resignation letter without coercion or deceit by the employer.
(3) The employee retired as of 31 December 2024 upon reaching the mandatory retirement age and received full settlement of severance pay. Therefore, the employment contract as of 1 January 2025 was a newly concluded contract after termination of the prior employment relationship, and cannot be regarded as an extension of the previous employment relationship.
(4) While working at the ○○3 Complex Apartment, the employee received hospital treatment due to dizziness on 19 January 2025, and on 24 March 2025 he again showed health concerns, such as collapsing during work. In these circumstances, it cannot be considered unfair that the employer terminated the employment relationship on the ground of expiry of the contract term.
(5) The employer found it difficult to reject the residents’ representative council’s request to replace the security guard due to concerns about the employee’s health. In response, the employer, as a compromise, proposed that the employee work at a site located in Yeongdeungpo‑gu, but the employee refused. Considering all of these circumstances, it is difficult to recognize that the employee had a legitimate expectation of renewal of the employment contract. /
[See More Related Decisions]
- “‘Non‑Formation of Hiring Commitment (Absence of Offer Letter)’ – Unfair Dismissal Decision” – Decision date: – Case result: First-instance decision upheld
- “‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’ – Unfair Dismissal Decision”
- “‘Denial of Employee Status (Real Estate Brokerage Commission 50%)’ – Unfair Dismissal Decision”
[Tags]
Unfair dismissal, non‑existence of legitimate expectation of renewal (security guard rehired on a post‑retirement fixed-term contract), refusal to renew fixed-term contract, mandatory retirement, 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, “‘Denial of Employee Status (Real Estate Brokerage Commission 50%)’ – Unfair Dismissal Decision,” can be viewed in a new window.
※ A list of decisions related to non‑existence of legitimate expectation of renewal (security guard rehired on a post‑retirement fixed-term contract) can be found under “List of Decisions on Non‑Existence of Legitimate Expectation of Renewal (Security Guard Rehired on a Post‑Retirement Fixed-Term Contract).”
※ Korean version of this case: Korean article
