Dismissal of a Probationary Employee without Written Notice of Dismissal
Bongsoo Jung, Korean labor attorney at KangNam Labor Law Firm
I. Introduction (Summary and Major Points in Dispute)
In March 2014, I received an inquiry regarding a case of dismissal from Company X (hereinafter referred to as “the Company”) which is involved in the furniture wholesale business. The Company hired Employee Y (herein referred to as “the Employee”) as a translator and assigned her translation duties, but the Employee was unable to carry out her duties well, so the Company terminated the employment contract within the probationary employment period of three months. The Company did not issue a written dismissal notice during the final meeting with the Employee, but simply obtained her signature on the evaluation sheet for probationary employees. Two months after her termination, the Employee filed an application for remedy for unfair dismissal. Considering that the Employee had passed a tough interview process and had worked hard during the probationary period, the Employee claimed that the Company’s unilateral termination of her employment was unfair. For its part, the Company claimed that it had to terminate the employment contract after evaluating the Employee’s performance during the probationary period as the Employee’s translation skills were remarkably lower than expected or desired.
Major points of dispute in this dismissal of a probationary employee were: 1), whether the fact that the Company failed to issue a written dismissal notice was acceptable, and 2), whether the Employee’s signature on her evaluation sheet can be regarded as agreement with termination of employment. In cases where an employee’s signature on an evaluation sheet has not been regarded as agreement with termination of employment, termination has been considered unfair dismissal in violation of required dismissal procedures. The Labor Commission concluded on May 9, 2014 that this case would be regarded as if the employee had accepted termination indirectly, even though her signed evaluation sheet could not be seen as agreeing to termination, given that it was admissible that the employee’s translation skills were insufficient for her position as a professional translator, and that the Employee did not refuse to sign the probationary employee evaluation sheet.
Here, I would like to review the claims of each party, the Labor Commission’s judgment, and then the case itself.
II. Claims of both Parties regarding the Dismissal of a Probationary Employee
1. The Employee’s Claim:
The Employee applied for an open position through an employment agency, had three separate job interviews and also took a three-hour translating test before being awarded the job in early October, and was assigned to a translator on the translation team on October 16, 2013. The Employee had worked very hard with no instances of lateness or absenteeism since she started with the Company. The Employee had official language qualification scores of 104 (TOEFL) and 980 (TOEIC) as well as a Masters degree from one of the top ranking US Universities, and had performed part-time work as a translator for three different broadcasting companies.
The Employee had never made any agreement with the Company concerning termination of employment. The Company notified the Employee of the termination of employment during the probationary period, but this dismissal during the probationary period should require an objective and rational reason to qualify as justifiable dismissal. Without such qualification, this action by the Company must be considered as unfair dismissal. The Company’s dismissal is not justifiable due to the missing legal requirements such as a reason for dismissal, the severity of disciplinary punishment, and the dismissal process itself.
2. The Employer’s Claim:
The Company rescinded the offer of employment during the probationary period due to the Employee’s remarkably insufficient translation ability and relatively low-quality translations. As these results could be deemed reason for termination of employment in terms of not meeting reasonable standards, this could not be considered abuse of the employer’s right to revoke an offer of employment. On the other hand, as this employee herself confirmed when she signed the probation evaluation sheet, this verified that both parties mutually agreed on the termination of employment.
When the Employee began her probationary period on October 16, 2013, she was assigned to translation duties, which involved the translation of English-language documents into Korean. Her translations did not meet the expected basic quality, and her translation efforts took twice the time of her colleagues. As her work contained so many translation errors, liberal translations with different meanings drastically from the original material, in addition to spelling mistakes, the translation team manager had to frequently re-translate her finished work. On December 4, 2013, the translation team manager implemented an intermediate evaluation on the Employee’s performance for four items: 1) job knowledge; 2) work-performance quality; 3) cooperation with colleagues; and 4) communication skills. Except for cooperation with colleagues, she received the lowest evaluation result category (‘requires considerable improvement’) for all areas. The Employee signed her agreement with this evaluation.
On January 9, 2014, the translation team manager had a meeting with this employee, explained the evaluation results of the employee’s probationary period, and then informed her of termination of her employment. The evaluation sheet of the probationary employee, on its front side, refers to 4 fields: job knowledge, work-performance quality, cooperation with colleagues, and communication skills, while the reverse side stipulates: “① The Company hires the employee; ② The Company extends the probationary period; and ③ The Company terminates employment.” The translation team manager explained the results of the probationary evaluation that revealed an insufficiency for each rated item, and then, on the reverse side of the evaluation sheet, the manager checked the section “the Company terminates employment” and asked her to sign there for confirmation, after which she signed the evaluation sheet. In the meantime, the personnel team manager joined the meeting, and the Employee said: “My aptitude suggests that I prefer a marketing job to a translation job”. The personnel team manager suggested that the Employee could apply for an open position related to marketing, and later gave a business card to the Employee. As the interview process continued during the final evaluation meeting, the Employee confirmed the items regarding termination of her employment with the Company and then signed the probationary evaluation sheet. In this situation, where the employee herself even mentioned that she would be more qualified for marketing than for translation work, her termination was mutually agreed upon.
III. The Labor Commission’s Judgment
The major points of dispute in this case are firstly, whether or not there was a dismissal; and secondly, if there was a dismissal, whether or not such dismissal was justifiable. The Labor Commission, after considering both parties’ claims, reviewing various submitted verification documents, and direct interrogations during the judgment hearing regarding these points of dispute, judged this case as follows:
The Supreme Court ruled, “the dismissal of an employee during a probationary period, or the refusal to enter into an employment contract after the expiration of a probationary period, are interpreted more generously than general dismissal, as concerns the employer’s right to be able to cancel further employment, because the probationary system was designed to give the employer time to evaluate whether or not a new employee has the competence required for a given job.”
In this case, the Employee did not agree on the termination of employment, and even during the probationary period, the employer’s termination of the Employee without objective and justifiable reason shall qualify as an unfair dismissal. However:
1) The Employee was very not good at translations and frequently made mistakes.
2) Approximately one month after the joining the Company, the Employee complained to the personnel team about the inefficient working system and unfair work assignments, which had caused disagreements between the Employee and her direct superior, the translation team manager. After this incident, the Company decided to terminate the employment with this employee prior to completion of the three-month probationary period, due to the Employee’s work deficiencies and poor communication skills with the translation team manager.
3) The evaluation sheet which the Employee confirmed and signed in the section of termination of her employment with the Company on January 9, 2014 could not be enough to verify mutually agreed-upon termination. However, the fact that she signed the evaluation could be understood as accepting dismissal, since she had signed an interim evaluation the month before (on December 4, 2013) which also highlighted her poor performance.
4) After receiving the lowest scores available in the probation evaluation performed on January 9, 2014, the Employee signed the evaluation sheet stipulating the termination of employment without dispute.
5) During the process of evaluating the probationary results and delivering notification of termination, the Employee stated that she could do better in marketing than in translation. In consideration of the documents submitted and interrogations conducted, the Employee was deemed to have suggested that the Company’s original evaluation of her translation skills were not adequate for the job.
6) Even though the Employee did not want to accept it, she knew that there was a probationary period stipulated in the employment contract and the rules of employment, and so the termination of the probationary contract was not unilateral.
Considering all the items mentioned above, in terms of the purpose of setting the probationary period, the termination of employment between the Company and the Employee was implemented based on the negative results of her poor work performance.
IV. Major Points of Dispute in the Labor Commission’s Decision
The major points of dispute in this dismissal during the probationary period are two: the first is whether it could be no problem when the Company did not provide written notification; and the second is whether the Employee’s signing of the probation evaluation sheet can be regarded as agreed-upon termination. I would like to look into each.
1. In cases where the company does not give written notification of dismissal to the probationary employee, is the dismissal valid or not?
Article 23 (1) of the Labor Standards Act stipulates that the employer shall not dismiss a worker without justifiable reason. Article 27 of the LSA stipulates that when intending to dismiss a worker, the employer shall notify the worker in writing of the reason for dismissal and the date of such dismissal. These rules were designed to make the employer become more circumspect, and ensure whether dismissal in fact exists, and if so, the reason for the dismissal as well as the date it becomes effective, so the worker can easily make appropriate preparations if he or she seeks a remedy claim.
In cases where the probationary employee was dismissed, even though there was a justifiable reason to dismiss the probationary employee due to poor evaluation results of his/her occupational aptitude or job eligibility, if the company did not notify the probationary employee in writing of the reason for the dismissal and the date of such dismissal, such dismissal is regarded as an unfair dismissal due to no implementation of procedural justification. Accordingly, this particular dismissal case was implemented without the Company’s written notification of dismissal, and so unless the case was considered an agreed-upon termination, as the Company claimed, this dismissal during the probationary period could only become invalid because the Company did not follow the procedural requirement of written notification.
2. Whether the Employee’s signing of the probation evaluation sheet can be regarded as agreed-upon termination of employment?
The term, ‘agreed-upon termination’ is not defined in the labor laws, but refers to mutual agreement: the employee expresses his or her intention to resign, and then the employer accepts it, thus terminating the employment relationship.
First of all, the Labor Commission ensures that an employee’s signing of a probation evaluation sheet does not automatically become an agreed-upon termination of employment. However, in this case, the Employee signed the evaluation sheet knowing that it stipulated that the result of the evaluation was to terminate the employment. The Employee admitted in the evaluation meeting that she was not qualified for a translation job, but as there were no open positions for marketing that she wanted to apply for, she applied for the translation position instead. Also, when the Employee joined the Company, she signed the employment contract based upon a probationary period. In the middle of the probationary period, the Employee received the intermediate probation evaluation, and after the final evaluation at the end of the probationary period, she was informed of the termination of the employment contract. Considering all the aforementioned items, although the Employee did not agree with the termination of employment directly, she could be regarded as agreeing with the termination of employment indirectly. Accordingly, it is evident that the Labor Commission’s decision was fair.
V. Conclusion
It is common for the Company to notify of dismissal after probation evaluations without written notification, but this can be deemed an illegal dismissal in violation of the employer’s duty to provide a written dismissal letter as stipulated by Article 27 of the Labor Standards Act. This particular dismissal during the probationary period was made without such written dismissal notification. Fortunately in this case, the Company made sure that the probationary employee understood the employer’s reason for dismissal during the evaluation meeting and obtained the Employee’s signature on the evaluation sheet. Because of this signature, the Labor Commission decided that the Company’s termination of the probationary employee’s employment was not a dismissal, but the agreed-upon termination of employment based on the previously-mentioned conditional employment contract concerning probation. If this case had been designated as an illegal dismissal, the Company would be at risk for huge financial and operational damages. Accordingly, it is recommended that when dismissing even a probationary employee, a company should observe the required procedures such as a written notification of dismissal along with justifiable reasons as per the Labor Standards Act.
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