Probationary Period Dismissal in Korea: Can Employers Fire You Freely? Workers' Rights Guide

Dismissal During Probation Is Not Freely Permitted

The notion that "an employer can let someone go at any time during probation" is commonly heard in workplaces, but it is not legally accurate. Probationary workers are protected by the Labor Standards Act (근로기준법), and in particular, at workplaces with 5 or more regular employees, dismissal without just cause constitutes unfair dismissal (부당해고).

How Is Dismissal During Probation Treated Under the Law?

Article 23 of the Labor Standards Act (근로기준법 제23조) prohibits employers from dismissing a worker without just cause. This provision is not excluded simply because the worker is on probation.

However, Supreme Court precedent (Supreme Court Case No. 2006다42683, etc.) recognizes the probationary period as a period for evaluating a worker's suitability for the role, and applies a somewhat more relaxed standard than for dismissal of regular employees. That is, if insufficient work ability, poor work attitude, or failure to adapt to the organization is objectively established, the dismissal may be found to have just cause.

Nevertheless, dismissing a worker simply because the employer "doesn't like them," or doing so unilaterally without prior warnings or evaluations, is difficult to regard as just cause.

Workplaces with Fewer Than 5 Employees Are Different

Workplaces with 4 or fewer regular employees are excluded from the application of Article 23 of the Labor Standards Act (prohibition of unfair dismissal). Accordingly, in such cases an employer may terminate an employment contract during probation with comparatively greater freedom. Even so, a claim for damages under the Civil Act (민법) or a dispute based on breach of the employment contract may still be possible.

Dismissal Notice Obligation: The 3-Month Probation Threshold

Article 26 of the Labor Standards Act (근로기준법 제26조) requires that an employer either give 30 days' advance notice of dismissal or pay 30 days' ordinary wages as dismissal notice pay (해고예고수당). However, this obligation is waived for a worker on probation who has not yet completed 3 months from the start of probation.

In other words, if a worker is dismissed after completing 3 months of probation, the employer must pay dismissal notice pay if the dismissal is carried out without advance notice.

How to Respond If You Receive a Dismissal Notice During Probation

① Request the reason for dismissal in writing.
Under Article 27 of the Labor Standards Act (근로기준법 제27조), the employer must notify the worker of the reason for and timing of the dismissal in writing. Verbal dismissal is itself a procedural violation.

② If the stated reason is unconvincing, consider filing for remedy.
Workers at workplaces with 5 or more employees may file an application for remedy for unfair dismissal with the Regional Labor Relations Commission within 3 months of the date of dismissal. There is no filing fee, and you may receive an order for reinstatement to your original position or payment of wages equivalent to the period of dismissal.

③ If wages are unpaid, file a separate complaint.
If any wages from the probationary period remain unpaid, you may file a wage arrears complaint (임금체불 진정) with the Ministry of Employment and Labor. If the deadline for payment of severance pay (퇴직금) — 14 days — is exceeded, you may also claim delay interest at an annual rate of 20% (Article 17 of the Enforcement Decree of the Labor Standards Act / 근로기준법 시행령 제17조).

Can Probationary Workers Receive Annual Leave and Weekly Holiday Allowance?

Even during probation, a worker who works 15 or more hours per week is entitled to a weekly holiday allowance (주휴수당), and one day of annual leave (연차유급휴가) is granted for each month of perfect attendance. Withholding these entitlements on the grounds that the worker is on probation is unlawful.

Note: The statutory entitlements described above represent the legal minimum. Check your employment contract, as contractual terms may differ.

If you have received a dismissal notice during probation or need to calculate wages or annual leave for a probationary worker, try the salary take-home calculator at Workbear (workbear.kr). You can check your actual take-home pay and the breakdown of four major insurance deductions at a glance, and quickly determine your next steps using the AI labor law search and complaint drafting features.

This article is for informational purposes only and does not constitute legal advice. For specific cases, consult a certified labor attorney (노무사) or lawyer.