Contributed By Yoon & Yang LLC (Seoul - HQ)
Article 23(1) of the Labor Standards Act requires employers to have justifiable cause when dismissing an employee. The Korean Supreme Court has defined that there is a justifiable cause if, due to a fault attributable to the employee, it is impossible for the employer and the employee to, under generally accepted social norms, continue their employment relationship. Whether continuance of employment relationship is impossible under the generally accepted social norms is determined upon a comprehensive consideration of various factors, including (i) the purpose and nature of the employer’s business, (ii) workplace conditions, (iii) the employee’s position and responsibilities, (iv) how and why the employee engaged in misconduct, (v) the impact such misconduct will have on the sound order of the business, and (vi) the employee’s past behaviour.
Ordinarily, grounds for dismissal are stipulated under a company’s rules of employment and other relevant internal regulations. Some of the most common grounds for dismissal recognised through court precedents are (i) misrepresentation or concealment of educational background and work experience, (ii) fabricating résumés, (iii) bad behaviours at work, such as unexcused absences, (iv) refusing to follow orders relating to personnel movements (eg transfers), (v) assaulting colleagues or supervisors, (vi) inflicting harm to the company through criminal conduct (eg embezzlement, breach of duty), and (vii) personal misconduct committed outside of the workplace.
Pursuant to the Labor Standards Act, an employer must (i) provide a prior notice of 30 days prior to the employee’s dismissal (Article 26) and (ii) notify the detailed reason for, and timing of, the dismissal in writing (Article 27).
Further, if an employer has collective agreements, rules of employment, employment contracts or other relevant agreements that separately provide for additional procedures of taking disciplinary actions, then the employer must comply with such procedures. The Korean Supreme Court has also held that disciplinary dismissals are invalid if an employer failed to follow the procedures laid out in its collective agreements, rules of employment, employment contracts or other relevant agreements when dismissing an employee.
An employer’s dismissal of its employee is valid if the employer can justify (i) its reason(s) for taking the disciplinary action, (ii) the procedures followed for taking the disciplinary action, and (iii) the level and/or adequacy of the disciplinary action taken. However, the Korean Supreme Court has held that if any of the foregoing factors cannot be justified, then the resulting disciplinary dismissal is invalid. The employer bears the burden of proof for showing that the dismissal is justified.