To Justify Probationary Dismissal... "Specific and Substantial Reasons Must Be Clearly Stated in Writing"

"Unfair Dismissal If Specific Reasons Are Not Provided"

The Seoul Administrative Court ruled that when refusing the full employment of a probationary employee based on evaluations conducted during the probation period, the employer must notify the employee in writing of the specific reasons for dismissal for the refusal to be effective.

The Administrative Division 11 of the Seoul Administrative Court (Presiding Judge Kim Jun-young) ruled in favor of plaintiff A in the unfair dismissal relief retrial cancellation lawsuit (2023GuHap77993) filed against the Central Labor Relations Commission on December 13, 2014.

Photo to aid understanding of the above article. Pixabay

[Facts]

On November 16, 2022, A entered into a labor contract with company B, which is engaged in earthworks, to be responsible for safety management at a construction site. The contract stated that "full employment will be decided based on evaluation after a 3-month probation period."

On January 16, 2023, company B notified A that "considering work ability, attitude, and other performance during the probation period, you have failed to pass the full employment," and requested A to complete existing tasks by February 15.

Disagreeing with the refusal of employment, A filed an unfair dismissal relief application, but it was dismissed by both the Seoul Regional Labor Relations Commission and the Central Labor Relations Commission. Consequently, A filed a lawsuit.

In the lawsuit, A argued, "The labor contract does not correspond to a probationary labor contract, and company B refused full employment without an objective and fair evaluation and did not specify the reasons, resulting in procedural defects."

[Court’s Judgment]

The court first judged that the labor contract between A and company B was indeed a probationary labor contract. The court stated, "It is reasonable to view the labor contract as a probationary labor contract concluded for the purpose of assessing the worker’s vocational aptitude, work ability, qualities, personality, and diligence based on work conditions during the period."

However, the court found the refusal of full employment unlawful. It was difficult to recognize that company B had notified A in writing of specific and substantial reasons for refusal of full employment, and it was also difficult to see that there were objectively reasonable grounds for the refusal.

The court explained, "Article 27 of the Labor Standards Act stipulates that for an employer to dismiss a worker, the reasons and timing of dismissal must be notified in writing for the dismissal to be effective. This is intended not only to make the employer cautious about dismissing the worker through written notification of dismissal reasons but also to clarify the existence, timing, and reasons for dismissal so that disputes can be properly and easily resolved afterward, and to enable the worker to respond appropriately to the dismissal." The court added, "When the employer notifies the reasons for dismissal in writing, the worker must be able to specifically understand what the reasons for dismissal are from the worker’s perspective."

Furthermore, the court pointed out, "The notice of refusal of full employment sent by company B to A only states, 'Considering the plaintiff’s work ability, attitude, and other performance during the probation period, full employment is refused,' without specifying which aspects of A’s work ability, attitude, or performance led to the refusal. Also, company B did not notify A of the evaluation results such as the overall probationary employee evaluation report."

The court added, "The statement in the refusal notice that 'full employment is refused considering work ability, attitude, and other performance' is vague and ambiguous, making it impossible to know specifically which work ability or attitude of the plaintiff was lacking. Such a statement alone does not seem to allow disputes to be properly and easily resolved afterward."

Additionally, the court found it difficult to consider the evaluation as fair and objective since the HR personnel responsible for evaluating A during the probation period had worked with A for only a minimum of two days to a maximum of one month.

Hong Yoon-ji, Reporter, Legal Times

※This article is based on content supplied by Law Times.