Contributed By Yoon & Yang LLC (Seoul - HQ)
An employee may make a wrongful dismissal claim by (i) filing a civil suit for invalidation of the dismissal and disputing whether his or her dismissal was justified, and (ii) petitioning for a wrongful dismissal relief from the local Labor Relations Commission (the “LocalCommission”). The civil suit for invalidation of dismissal and petition for a wrongful dismissal relief are two independent systems. Therefore, an employee may choose to proceed with either or both of the systems.
When an employee proceeds with the first of the two options above (ie civil suit for invalidation by the court) and subjects the dismissal to a dispute, then the court of first instance must decide as to the validity of the dismissal. Both the employer and employee may challenge the court of first instance’s decision by filing an appeal within two weeks from the date the written court decision was served to the relevant party. If either of the parties wishes to challenge the decision rendered by a High Court or a panel of district court judges acting as a court of second instance, then the parties must file an appeal to the Supreme Court within two weeks from the date the written decision was served for a final and conclusive judgment.
On the other hand, if an employee proceeds with the second option (ie petition for relief from the Local Commission), then the Local Commission determines whether the employer was justified in dismissing the employee (as opposed to whether the dismissal was valid). Article 31 of the Labor Standards Act provides that both the employer and employee may challenge the Local Commission’s decision by requesting for a new examination to the national Labor Relations Commission (the “National Commission”) in accordance with the Labor Relations Commission Act within ten days of being notified of the Local Commission’s decision. If either of the parties wishes to challenge the National Commission’s decision upon a re-examination, then the relevant party must file an administrative lawsuit in accordance with the Administrative Litigation Act within 15 days of being served with the National Commission’s decision. The administrative lawsuit can be appealed twice, much like the first option (ie civil lawsuit) described above.