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[Recent Court Case 3] Notice of a tentative hiring decision establishes an employment relationship between an employer and an employee and a subsequent cancellation of the tentative hiring decision is practically deemed a dismissal.

2020.05.08

[Case No. Seoul Administrative Court decision 2019guhap64167 dated May 8, 2020] 
 
The Seoul Administrative Court held that where a notice of tentative hiring decision was given to set out main employment conditions and the offer and acceptance was made as to the employment agreement, the employment agreement would be deemed to be established and the subsequent cancellation of the tentative hiring decision would practically be deemed a dismissal. 
 
The company asked a recruiting agency for recruitment support and an employee who was working at another company also asked the recruiter for job search support. The recruiter arranged the employee to interview with the company president and vice president on March 9 and 21, 2018. On March 23, 2018, the recruiter congratulated the employee of being hired, and provided the employment conditions, such as the annual salary, incentives, insurance, vacation and other benefits. The employee replied to the recruiter specifying the starting date, and the recruiter forwarded the reply to the company. The employee then terminated the existing employment with the former employer on April 30, 2018. However, the employee was informed on May 30, 2018 through the recruiter that the company would not hire him/her. The District Labor Relations Commission and the National Labor Relations Commission both determined that this was a case of unlawful dismissal and the company filed a lawsuit for cancellation of the decision. 
 
The Seoul Administrative Court held that the employer’s announcement of recruitment was an invitation of offer for an employment agreement and that the employee’s application to the recruitment procedure was an offer. The court further held that the employer’s notice of the tentative hiring decision was an acceptance of the offer for the employment agreement and that this would apply in a case where the employer would decide to hire some time before the actual work would start and the wage would be paid. The court therefore confirmed that the notice of the tentative hiring decision would be sufficient to establish the employment relationship between the employer and the employee and that the employer’s subsequent cancellation of the tentative hiring decision was practically a dismissal as set out under the existing legal principles (see Supreme Court Decision 2000da25910 dated December 10, 2002). 
 
The court continued to note that the employee had two interviews, were provided specific employment conditions, and specified the desired starting date which could be deemed the offer and acceptance of the employment agreement with the main terms of employment conditions. The terms of the service to be provided by the employee were specified in accordance with the job description and qualifications presented by the company and the information provided by the employee, to the extent of not interfering with the establishment of the employment agreement. 
 
The court also considered that the employee had applied to a senior position with 13 years of experience in a relevant position and that the company conducted two interviews after being provided detailed information about the employee’s experience in concluding that it was unlikely that the company made the hiring decision on the condition of verifying the employee’s capacity or had any other grounds of disqualification. The court concluded that the company’s unilateral notice of cancellation of the tentative hiring decision should be deemed a dismissal. 
 
The court therefore held that the National Labor Relations Commission’s decision, which found that the company’s cancellation of the tentative hiring decision was an unlawful dismissal, was legitimate, and therefore, dismissed the company’s claim.

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