Hello, this is Cheongchul Law Firm.

"Since you are on probation, do not come to work from tomorrow." If a company gives such notice, can it really dismiss an employee at will? The short answer is no. Refusing to confirm an employee after probation is, in legal terms, a dismissal, and without a just cause it can constitute an unfair dismissal. Today we explain the standards for the validity of probation dismissal (refusal of permanent employment).

[Contents]

1. The legal meaning of a probation period

2. Do probationary employees also enjoy dismissal protection?

3. When a refusal of permanent employment is justified — objective reasonableness and social acceptability

4. Cases found to be unfair dismissal vs. cases found to be justified dismissal

5. Dismissal procedure — written notice and advance notice

6. What to do if you are unfairly dismissed

The legal meaning of a probation period

A probation period is set to evaluate an employee's job ability, aptitude, and adaptability on the premise of permanent employment. Although permanent employment is reserved, a probationary employee has already entered into an employment contract and provides labor, and is therefore a full employee. Accordingly, a company's refusal to confirm permanent employment at the end of probation is not a mere withholding of hiring but a dismissal that terminates an already established employment relationship by the employer's will.

Do probationary employees also enjoy dismissal protection?

Yes. Being on probation does not mean that the dismissal restrictions under the Labor Standards Act (근로기준법) do not apply. As emphasized in the video, refusing permanent employment during probation is also a dismissal, so it does not end with a single line of notice.

That said, the Supreme Court applies a somewhat relaxed standard to dismissal during probation compared with ordinary dismissal after permanent hiring, because the refusal is based on the evaluation conducted during probation and the employer is afforded broader discretion. However, a relaxed standard never means that the company may dismiss freely.

When a refusal of permanent employment is justified — objective reasonableness and social acceptability

The Supreme Court holds that, even under the relaxed standard, a dismissal during probation is valid only when there is an objectively reasonable ground and it is acceptable under generally accepted social norms. In other words, vague reasons such as "because you are on probation" or "you don't seem to fit our company" are not enough.

To be justified, evaluation criteria must be established in advance and communicated to the employee, and the evaluation results based on those criteria must be supported by objective evidence. Whether the employee was given feedback on shortcomings or an opportunity to improve is also an important factor.

Cases found to be unfair dismissal vs. cases found to be justified dismissal

Cases found to be unfair dismissal

In a case where a company gave notice of termination of probation with a single euphemistic email stating that the employee "did not fit the company's direction," the court found the written notice insufficient and the substantive grounds insufficient, and held it to be an unfair dismissal. Likewise, where the employer fails to announce evaluation criteria in advance, or hands down a finding of unsuitability without any feedback or concrete evaluation, the dismissal is often recognized as unfair.

Cases found to be justified dismissal

Conversely, where the employee repeatedly violated rules during the short probation period — for example, violating safety regulations or causing an accident — or where the evaluation criteria were clear and poor work attitude and non-performance were objectively proven, the refusal of permanent employment was recognized as justified. Ultimately, the key is whether the evaluation criteria and grounds for dismissal are objectively proven.

Dismissal procedure — written notice and advance notice

Because a refusal of permanent employment is a dismissal, the procedural requirements must also be met. Under Labor Standards Act Article 27 (근로기준법 제27조), an employer must give written notice of the grounds and timing of dismissal, and a dismissal without written notice has no effect. As in the case above, if the employer gives only vague notice by email and fails to meet the written notice requirement, that alone may render the dismissal unfair.

Advance notice of dismissal under Labor Standards Act Article 26 (근로기준법 제26조) is also relevant. However, the duty of advance notice does not apply to an employee who has worked continuously for less than three months, so its application must be examined individually depending on the probation and tenure period. Note also that failure to give advance notice is a separate issue from the validity of the dismissal itself.

What to do if you are unfairly dismissed

If you believe you were unfairly dismissed on the ground of probation termination, you may file an application for remedy for unfair dismissal with the competent Labor Relations Commission within three months from the date of dismissal. The existence of evaluation criteria, the objectivity of the evaluation, whether written notice was given, and the substantive validity of the grounds are all considered together. If the employer's stated reasons are vague or unproven, the chances of remedy increase.

Probation dismissal cannot be summed up by the single phrase "because you are on probation." Without fair evaluation and grounds, even a probationary employee cannot be dismissed at will. Cheongchul Law Firm, drawing on hands-on experience in labor disputes, accompanies your case from start to finish — from applications for remedy for unfair dismissal to defending employers. If you are facing difficulties related to probation dismissal or refusal of permanent employment, please contact Cheongchul Law Firm.

This article is provided for general legal information purposes only and does not constitute legal advice on any specific matter. As the outcome of each case may differ depending on the facts, please consult an attorney.