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In the workplace, probation doesn’t mean no protection

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Published : 2014-09-02 20:27
Updated : 2014-09-02 20:27

In this column we will be discussing a labor case. Although labor disputes are very common in Korea, the sums are often very small, so hiring an attorney or labor counselor is not always worthwhile. Sometimes, however, it can be beneficial to hire someone, particularly for employees who have a solid case, but are leaving the country and cannot handle the case on their own, or are otherwise too busy.

One of the more common misconceptions about labor law is the idea that employees can be terminated during “probation” for any reason, with “probation” often ranging from three to six months. Although it is true that greater “cause” is needed to fire employees after probation, some degree of cause is still needed to terminate employees even before their probationary period is finished.

The Supreme Court has stated, “Employers have a broad right of cancellation. However, even in (the case of a probationary employee), the reasons of dismissal must be rational, objective and should be considered as (a) proper decision based on social norms.”

The case I recently handled involved a teacher who had studied law and had years of experience teaching before becoming employed at a rather large and well-known hagwon. The contract was for a year but stated that the first three months were probationary, and that the school would decide to continue or terminate the contract after three months.

After three months, the hagwon terminated the contract, alleging that she flirted with a student and a coworker, and that her evaluations were not up to par. The teacher asked for evidence of the flirtation, and there was none. Her evaluations were also higher than many of her other colleagues, as she had even volunteered for extra weekend activities.

It is the unfortunate practice of many seasonal employers to offer longer contracts and then create excuses to terminate people when predictable seasonal declines kick in. Three-month contracts often lack the benefits of longer contracts and don’t appeal to workers, nor can the employer sponsor an E-series visa for a three-month contract.

But this practice simply isn’t legal. And the negative effects, which often include a refusal to supply a good recommendation letter, often go well beyond early and unfair termination, affecting future job hunts.

In this case, the teacher consulted with me at one of the free legal clinics and then agreed to hire me to represent her before the Labor Board.

It is the employer who has the legal obligation to prove the reasons for dismissal; as the employee, it was not up to my client to prove she was not at fault. Of course, it makes the case easier if you have evidence to prove your innocence, such as a letter of testimony from a coworker, but writing one may not be in former colleagues’ best interest if they are still working for the same hagwon.

Still, other evidence, such as past recommendation letters can help. In this case, the teacher had a long record of positive work in Korea, which helped to overcome the lack of evidence presented by the hagwon, and secure compensation for termination. 

By Yuna Lee

Yuna Lee is a Korean attorney at Seowoo & Minyul Law Firm in Seoul. You can read her blog at askakoreanlawyer.blogspot.com. If there is a legal issue you would like to be addressed, email askalawyer@naver.com. ― Ed.

Disclaimer:
This column is not intended as legal advice. No action should be taken or avoided based on this column, no attorney-client relationship is formed by reading this column or contacting the authors, and the authors expressly disclaim any liability for the content of this column. Those with legal problems in Korea should seek advice from an attorney.

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