When the Employer's Own Mistake Becomes Your Fault

 

I heard about a case that still bothers me every time I think about it. A worker, still new, still within her first few weeks — E9 visa, no fault of her own — and her employer simply never went to immigration to take care of her papers. No renewal, no registration, nothing. Eventually her status lapsed and she became TNT, undocumented, through absolutely no action of her own. And then the same employer who failed to do their part used exactly that — her now-undocumented status — as the reason to send her home.

Bagong simula pa lang niya sa trabahong iyon. Wala pa siyang nagawang mali. Pero ang pagkukulang ng amo, siya pa ang nagbayad.

I want to talk about probationary periods and dismissal under Korean law, because a lot of us think that being "just probationary" or "still new" means we have no protection at all — that the employer can do whatever they want during that time. That's not entirely true, and stories like this one show exactly where the line actually is.

Probationary employees are still employees under the law

Even though a new employee is still within their probationary period, Korean courts have consistently held that dismissal during probation must still be for a "justifiable reason" under the Labor Standards Act. The probationary period isn't a loophole that removes your rights — it exists to give the employer time to evaluate whether you're suited for the job, based on real performance and conduct.

That said, courts have also recognized that the scope of what counts as a "justifiable reason" is wider during probation than it is for a regular, confirmed employee. An employer doesn't need to apply the exact same strict standard used to dismiss a long-term staff member. But "wider" does not mean "anything goes" — and it certainly doesn't mean an employer can create the very problem they then use as the reason for dismissal.

When the reason for dismissal is actually the employer's own failure

This is the heart of what happened in the story above. Under the E9 / EPS system, there are specific responsibilities that fall on the employer — including steps related to registration and immigration procedures for the worker they've sponsored. When an employer simply fails to do this, and the worker's status lapses as a direct result, that lapse isn't something the worker caused. It's something that happened to her, because of someone else's inaction.

Using that resulting problem as grounds to dismiss her isn't a legitimate exercise of an employer's right to evaluate a probationary employee. A justifiable reason for dismissal has to relate to something within the employee's own conduct, performance, or fitness for the job — not a consequence of the employer failing to fulfill their own legal obligations. If the underlying "reason" for dismissal only exists because the employer created it, that reason can't fairly be called justifiable.

Refusing regular employment without real evaluation is also a problem

Korean labor cases have also made clear that if an employer's evaluation at the end of a probationary period doesn't use objective or reasonable criteria, refusing to make that employee regular can itself be considered an unfair dismissal — an abuse of the employer's reserved right to decide on employment. In other words, the employer can't just wave vaguely at "poor fit" or a technicality without a real, honest evaluation behind it.

And separately: if a probationary period isn't clearly and properly established in the labor contract to begin with, the new employee may actually be regarded as a regular employee from the start — not a probationary one — which changes what standard applies to their dismissal entirely.

Why this matters even when it feels hopeless

I know that for someone in this exact situation — new job, papers in limbo, suddenly undocumented because of someone else's failure — the idea of pushing back can feel impossible. Fear, language barriers, not knowing where to even start. I'm not writing this to pretend those barriers don't exist.

But I think it matters to say clearly: becoming undocumented because your employer failed to do their job is not the same as being at fault. The law recognizes that a justifiable reason for dismissal has to be real, has to relate to you, and can't just be the employer's own mistake handed back to you as if it were yours to carry.

Kung mayroon man kayong kakilala na nagdaan o dumaraan sa katulad nito, alamin nating hindi laging tama ang unang naririnig nating dahilan. Minsan, ang totoong dahilan ay hindi natin kasalanan — kundi kasalanan ng hindi gumanap sa tungkulin nila.

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