Blog, Labor

We looked over the legitimate reasons for dismissal in the previous article. Now let us show the legal procedure for an employer to dismiss an employee.

According to Labor Standard Act of Korea, employers can’t just fire their employee like “Hey, you! Don’t come to work tomorrow!” because sudden dismissal can have serious damage to employees’ livelihood. The employer should give “advance notice” at least 30 days in advance of dismissal so that the employee can look for a new job in those 30 days, or the employer should pay the employee 30 days’ worth of wage in lieu of such notice.

Legal Procedure for Dismissal

0f course, there are exceptions. The employer doesn’t have to do all these, when (a) the employee has been working less than three months, (b) the business itself is impossible to continue due to natural disasters or other unavoidable circumstances, and (c) the employee has intentionally caused serious damage to the business or property loss. 

1.1 Advance Notice of Dismissal

Article 26 (Advance Notice of Dismissal)

When an employer intends to dismiss an employee (including dismissal for management reasons), he or she shall give the employee a notice of dismissal at least 30 days in advance of such dismissal, and, if the employer fails to give such advance notice, he or she shall pay such employee a 30 days’ ordinary wage at the least: Provided, That where any of the following is applicable, this shall not apply:

1. 1. 1. Where the period during which the employee has worked continuously is less than three months
      2. Where continuation of the business is impossible due to natural disasters, incidents or other unavoidable circumstances
      3. Where the employee has intentionally caused serious damage to the business or property loss, which falls under the reasons prescribed by Ordinance of the Ministry of Employment and Labor

1.2 Written Notice of Grounds for Dismissal

Also, an employer should notify the dismissal in writing, while stating exactly WHEN and WHY they are being dismissed. This is for two reasons: one, to prevent employers from dismissing their employees impulsively, and two, to help resolve the future legal dispute about the dismissal if it happens.

Article 27 (Written Notice of Grounds for Dismissal)

1. 1. 1. When an employer intends to dismiss an employee, he or she shall notify the employee in writing of grounds and timing for the dismissal.
      2. The dismissal of an employee shall become effective only upon a written notice pursuant to paragraph (1).
      3. Where an employer has given an employee an advance notice of dismissal under Article 26 in writing, stating grounds and timing for dismissal, the employer shall be deemed to have given notification under paragraph (1).

Please note that this “written notification” is an essential part of the procedure, without any exception allowed. So, even if the (a) the employee has been working less than three months, (b) the business itself is impossible to continue due to natural disasters or other unavoidable circumstances, and (c) the employee has intentionally caused serious damage to the business or property loss, the employer still should notify the dismissal in writing. Oral notice is illegal.

Invalid Dismissal

Now comes the confusing part. When is the dismissal “invalid”? When the employer didn’t give an advanced notice 30 days before the dismissal? Or when the employer didn’t notify in writing? Or when the employer didn’t do both?

• When the employer didn’t give an advanced notice 30 days before the dismissal, and didn’t notify in writing: The dismissal is invalid. No question.
• When the employer DID give an advanced notice 30 days before the dismissal, but didn’t notify in writing: The dismissal is invalid. Written notification is an essential part of the procedure. So don’t be fooled if your employer says something like “Your dismissal is valid because I let you know 30 days before.”
• When the employer didn’t give an advanced notice 30 days before the dismissal, but DID notify in writing: The dismissal is valid, as long as the reason for dismissal stated in the written notification is a valid reason.
• Then what if the employer didn’t give an advanced notice 30 days before the dismissal, DID notify in writing, but the reason for dismissal is invalid?: The dismissal is invalid. The dismissal always needs a valid reason.
• Then what if the employer DID give an advanced notice 30 days before the dismissal, DID notify in writing, but the reason for dismissal is invalid?: The dismissal is invalid. The dismissal always needs a valid reason. Always.