Advisory Case on Terminating the Employment of a Probationary Worker against Whom Workplace Harassment Claims Were Raised

1. The Client's Situation

The client conducted an interview with an employee who was in a probationary period on the grounds of insufficient job competency, and was considering terminating the employment relationship by not making the hiring permanent. During the interview, the probationary employee demanded to be processed as a recommended resignation rather than a cancellation of employment, and the day after the interview, sent a lengthy message to the team leader mentioning that they had suffered workplace harassment. The client had, in the past, ended employment relationships by receiving resignation letters from employees based on the results of probationary evaluations, but in this matter, since a harassment claim was also raised, the situation posed concerns of legal risk.

Premised on the point that refusing to make a probationary employee's hiring permanent may, although formally a termination of probation, substantively amount to a dismissal, Your Legal Team conducted a review centered on the existence of reasonable grounds and procedural risks. In particular, since workplace harassment had been mentioned, we focused our analysis on the possibility that the termination of the employment relationship could be interpreted as unfavorable treatment in retaliation for the report. Accordingly, we advised the client that processing the matter through a recommended resignation based on the employee's voluntary intent, rather than a unilateral termination of the contract, would be the way to minimize risk. In addition, we made clear that, regardless of whether the employment relationship was terminated, a separate, objective investigation procedure into the workplace harassment claim had to be conducted without delay.

By adjusting the method of terminating the employment relationship with the probationary employee, the client was able to preemptively block the possibility of the dispute escalating into claims of unfair dismissal and retaliatory treatment. In addition, the client separately recognized its obligation to investigate the workplace harassment, and established standards for preparing to confirm the facts and take follow-up measures in accordance with internal procedures. Through this, the client secured a practical response guide that can be applied to similar probationary-employee disputes that may arise in the future.