Blog, Labor

Dismissal, or firing, means that the employer terminates the employment against the will of the employee. If the employee themselves wants to quit the job, regardless of the name or procedure it is actually called in the workplace. For instance, even if the employee submitted the letter of resignation, that could still be “dismissal” if the employer forced them to submit it.

Labor Standards Act, Article 23 (Restriction on Dismissal)

 

1. 1. 1. An employer shall not, without justifiable cause, dismiss, lay off, suspend, or transfer an employee, reduce his or her wages, or take other punitive measures (hereinafter referred to as “unfair dismissal, etc.”) against him or her.

Dismissal In Korea

Korean law prohibits dismissal without “justifiable reasons.” So, if the employer had a justifiable reason to dismiss the employee, it would be a legitimate dismissal, otherwise it would be an “unfair” dismissal. We will look over the “justifiable reasons” which was approved by the Supreme Court in real-life cases. If you think you have been dismissed without justifiable reasons, it is highly recommended to contact a labor lawyer.

1. Injury or Disability

One, employee’s injury or disability. Of course this doesn’t mean that employer can fire their workers whenever they get injured or disabled. The employer should be considerate of their employee’s health problem, such as adjusting and rearranging the work so that the employee would be able to continue their job. But if the employee still finds themselves no longer able to continue their work from their physical disability, despite the employer’s consideration and effort, then the employer would have no choice but to dismiss them.

2. Absence Without Leave

Second, employee’s absent without leave. For instance, if the company has their own rule which says that employees can be dismissed for being absent continuously for a certain period of time without doing their job, it is justifiable to fire an employee for such reason.

3. Poor Working Attitude

Third, poor working attitude. Supreme Court is very strict when coming to this one. Dismissal based on “poor working attitude” gets justified only when the working attitude is really, really poor.

• A college professor submitted some books as evaluation materials for their promotion, saying that they wrote the books, but it turned out that the books were only a translation of other person’s book written in another language. The court acknowledged that the dismissal of the professor is justifiable.
• An employer worked for three months. They were late for their job seven times and went AWOL fifty-nine times. The court acknowledged that the dismissal of the employee is justifiable.

4. Violating Work Order

Fourth, violating work order or personnel order (such as relocation or transfer). Of course this only applies when such work order or personnel order is a reasonable one. If the order is unreasonable, the dismissal cannot be justified.

5. False Resume Information

Fifth, false information on the resume. In this case, the employee can only be dismissed if the employer wouldn’t have hired them, or at least not under the same condition, if they were aware of such information about employee’s educational background or career.

6. Company Damage

Sixth, causing damage to the company, such as embezzlement, breach of trust, theft, or serious accident, etc. The court declared that the dismissal is still justifiable even if the employee compensated for all the damage caused by their embezzlement.

7. Convicted with Crime

Seventh, being convicted with (not work-related) crime. This only applies when there was a final judgment of the trial, and the employee was found guilty.

8. Violence

Eighth, violence or abusive language. This would depend on the motive and circumstances of the incident. For instance, in a case where the employee assaulted the company’s CEO in front of other employees watching, the court found the dismissal justified. But in a case where the employer used violence first, then the employee used the violence to defend themselves, the court decided that the dismissal to the employee cannot be justified.

9. Illegal Union Strikes

Ninth, illegal union activities or strikes. Worker’s actions should meet certain requirements in order to be recognized as legitimate labor union activities. If their actions don’t meet such requirements, then it’s illegal, which means it can be a reason for dismissal.

10. Personal Misconduct

Tenth, personal misconduct. According to the Supreme Court, the misdeed in workers’ private lives can be a legitimate reason for dismissal only if it is directly related to business activities or is feared to undermine the corporate social evaluation.

11. Layoffs

Eleventh, urgent managerial needs, such as a layoff. Since this is a very common ground for dismissal, there are numerous court cases about what exactly is a standard of “urgent managerial needs.” We will look over that standard in later article.

Korean Labor Lawyer

If you are a foreign worker in Korea, who got unfairly dismissed, injured on the job, or was not paid for your work, SLG should be your first call. Our lawyers have an extensive experience in labor cases for foreign clients. With SLG, you will know what rights you have, and what to do to exercise those rights. Our lawyers will make sure you get all the things you are rightfully entitled to.