Incidentally, the Labor Standards Act of Korea does not have an explicit regulation on . . . → Read More: Probationary period]]> The probationary period, here, means a period that a company, after concluding a labor contract with a worker, sets a certain period of time to assess the worker’s aptitude for his job, train him to get familiar with the job, and etc.

Incidentally, the Labor Standards Act of Korea does not have an explicit regulation on this matter. 

The only article that mentions a probationary worker is the article 35 of the act.

Article 35 of the LSA

In the event of dismissal of an employee with any of the following status of employment, the employer is not obliged to give a 30-day notice.

- Daily employees who have not worked for a 3 consecutive months
- Employees hired for a pre-arranged period of time lasting 2 months or less
- Salary employees who have worked for less than 6 months
- Employees hired for seasonal work for a pre-arranged period of time lasting 6 months or less
- Employees under probationary period (of 3 months or less)

Most companies in Korea, based on this article, regulates in their rules of employment or individual labor contracts that probationary period shall be 3 months. 

1. What about making the period longer than 3 months? 

Again, no relevant article in labor law. 

However, an administrative interpretation by the Ministry of Labor says that the length of a probationary period is not restricted to 3 months but can be longer than 3 months  on the basis of nature of jobs and within reasonable bound. (February 9, 1993/Geungi 01254-221)

The interpretation also advises companies to have a relevant article in the collective bargaining agreement or the rules of employment. 

2. What about renewing or extending the probationary period? 

As can be expected, there is no mention on this matter in the law. Just an administrative interpretation by the ministry that extending the probationary period is not against law. (October 10, 1991 / Geungi 01254-14914) 

The conclusion is that an employer can decide on the length of probationary period as long as he/she considers it necessary for the purpose of assessing and training the worker but within the limit as can be reasonable and that such period should be stipulated in labor contracts, rules of employment to prevent any debate between a worker and a company. 

The following are the basic requirements for dismissal based on the labor standards act (LSA) of Korea.

1.  An employer should have a justifiable reason to dismiss a worker.

. . . → Read More: Basic legal requirements for dismissal in Korea]]>

Dismissal is one of the inevitable elements of human resource management. An employer can lessen a possible adverse impact of dismissal by complying with legal requirements dismissal.

The following are the basic requirements for dismissal based on the labor standards act (LSA) of Korea.

1.  An employer should have a justifiable reason to dismiss a worker.

Dismissal without a justifiable reason is invalid in Korea. However, the LSA does not give a definition of a “justifiable reason”.

The definition has been established by court rulings. The definition reads that a justifiable reason is one that makes it impossible for an employer to maintain employment relationship.

It sounds somewhat vague as it is a definition abstracted from numerous previous court rulings. The following list shows some specific reasons for dismissal that have been recognized by courts.

• Failure to follow instructions on job or personnel management
• Unauthorized leave of absence
• Early-leaving without approval, negligence
• Poor performance at work
• Physical or verbal violence at work
• Criminal offences outside workplace
• Obstruction of business, violation of the company rules
• Causing financial damages to the company
• Undermining the company’s reputation
• Violating work rules and safety rules
• Forging educational or professional attainment

2. Even if there is a justifiable reason for dismissal, an employer cannot fire a worker for some periods stipulated by by the LSA.

The periods are;

• temporary interruption of work for medical treatment of an occupational injury or disease and 30 days thereafter
• maternity leave and 30 days thereafter

3. An employer should give an advance notice to a worker 30 days before dismissal.

If an employer fails to give such notice, he/she should give a worker ordinary wage for 30 days instead.

The LSA states that an employer does not have to give advance notice to the following categories of workers.

• one who has been employed on a daily basis for less than three consecutive months
• one who has been employed for a fixed period not exceeding two months
• one  who has been employed as a monthly-paid worker for less than six months
• one who has been employed for seasonal work for a fixed period not exceeding six months
• one in the first three months of a probationary period

4. An employer should give a worker a notification of a reason for dismissal in writing.

This requirement was recently added through revision of the LSA. And it is something distinct from the advance notice of dismissal. An employer should notify a worker of a reason for and date of dismissal in writing, that is, written on paper.

Recently, some Korean companies were known to notify workers of their dismissal through email or text messaging. This will not be valid means of notification anymore according to the position of the Ministry of Labor based on the new requirement.

Failure to give written notification invalidates dismissal, thereby allowing a dismissed worker to bring a case of unfair dismissal.