1. the Philosophy of Dismissal Restrictions and the Jurisprudence of "Just Cause" in Korean Labor Law
1.1. The Constitutional Basis and Labor Law Status of Restriction on Dismissal
korea's labor law system, especially the Labor Standards Act, is based on the "doctrine of limitation on dismissal," which strongly restricts an employer's right to dismiss a worker in order to ensure the worker's right to survival. the right to work, stipulated in Article 32 of the Constitution, goes beyond simply being provided with the opportunity to work and includes the right not to be deprived of employment without just cause. accordingly, Article 23(1) of the Labor Standards Act states that "an employer may not dismiss, leave, suspend, transfer, reduce pay, or otherwise punish an employee without just cause." this amends the principle of "freedom to terminate employment contracts" in civil law, which means that in order for an employer to dismiss an employee, there must be a reason that is attributable to the employee or an urgent business need that makes it impossible to continue the employment relationship according to social norms.
the court defines dismissal as "the unilateral termination of the employment relationship by the employer against the will of the employee" and holds that it is the harshest disciplinary action that cuts off the employee's means of livelihood and should be utilized as the "ultima ratio". therefore, in practice, the legitimacy of dismissal is strictly examined through three pillars: the existence of a reason, the legality of the procedure, and the appropriateness of the severity of the discipline. based on this legal foundation, this report aims to clarify the criteria for determining unfair dismissal by analyzing various types of dismissals, recent case law, and remedies in depth.
1.2. Structure of the 'just cause' test
the abstract legal norm of "just cause" is materialized in concrete cases at three levels. the first is "substantive justification," which is a question of fact as to whether the employee actually committed the misconduct or incompetence that warranted the dismissal. the second is procedural justification, which refers to the granting of an opportunity to be heard, the holding of a disciplinary committee, and the fulfillment of the written notice obligations mandated by the Labor Standards Act. the third is the principle of proportionality (appropriateness of the measure), which is a question of equity that asks whether the dismissal is disproportionately harsh in relation to the employee's fault. if any of these three requirements are lacking, the Supreme Court will declare the dismissal unfair and judicially invalid.
2. a deep dive into the types of dismissals: ordinary, disciplinary, and redundancy
depending on the cause and legal nature of the termination, dismissals can be broadly categorized as ordinary dismissals (for personal reasons), disciplinary dismissals (for behavioral reasons), and redundancies (for management reasons). each type has different requirements for justification, so a clear distinction and understanding of these is the starting point for judging unfair dismissal.
2.1. Ordinary Dismissal (Ordinary Dismissal): the Law of Default
ordinary dismissal is a dismissal that occurs when an employee is unable to fulfill the obligation to provide work under the labor contract due to personal reasons. unlike disciplinary dismissal, it does not presuppose intentional misconduct by the employee and focuses on the loss or significant lack of ability to work.
2.1.1. Dismissal due to physical or mental disability
if a worker is unable to perform his or her job duties due to injury or illness, this is usually grounds for dismissal. for example, a driver loses his or her eyesight and is unable to drive, or a chef contracts a contagious disease and is unable to perform his or her cooking duties. however, even in these cases, the jurisprudence is that the employer should give priority to granting sick leave, vacation leave, or transferring the employee to another job that he or she can perform (redeployment) rather than dismissing him or her immediately. In other words, ordinary dismissals that are not preceded by efforts to avoid dismissal are likely to be found unfair.
2.1.2. Significant lack of ability to perform the job
the most controversial area is dismissal for "lack of ability to perform the job". courts do not recognize the mere fact that an employee received a low rating in a personnel evaluation as justification for dismissal. in order to be justified, the employee's performance must be objectively and significantly lacking, the employee must have failed to improve despite being given training or opportunities to improve, and the employee must not be likely to improve in the future. in particular, the fact that a lower rating under a relative evaluation system may be a structural consequence of the system, and therefore unfit for duty on an absolute basis must be demonstrated.
2.1.3. Mixed dismissals and procedural rigor
in practice, it is not uncommon for an employee's behavior to fall under both ordinary dismissal grounds (lack of competence) and disciplinary dismissal grounds (negligence, failure to follow instructions). in this case, the employer may choose to take the form of an ordinary dismissal to avoid the hassle of disciplinary proceedings, which the Supreme Court is strictly against. it is well established law that if a dismissal involves disciplinary reasons, it requires procedural guarantees (such as an opportunity to be heard) that are equivalent to those of a disciplinary dismissal, even if it is in the form of an ordinary dismissal. this is to prevent employers from using termination as an abusive disciplinary measure.
2.2. Disciplinary Dismissal: the Law of Maintaining Corporate Order
disciplinary dismissal is a punitive action taken when an employee violates corporate order or violates his or her job duties. it is a reprimand for an employee who has destroyed the trust in the working relationship.
2.2.1. Main reasons for disciplinary dismissal and case law attitudes
poor attendance and absenteeism: Prolonged absenteeism is the most obvious reason for dismissal. however, dismissing an employee outright for frequent tardiness or early departure may be considered "excessive discipline". firing an employee without a progressive disciplinary action, such as a warning or pay cut, is likely to be unfair.
embezzlement, misappropriation, and property damage: Misappropriating company funds or intentionally causing property damage is a fundamental breach of trust and is widely recognized as justification for termination. in a recent case, an employee who embezzled 400 million won from a supplier and went into hiding was found to be justified in terminating his employment.
workplace bullying and sexual harassment: This has been a hot topic in labor law academia and practice in recent years. courts have emphasized gender sensitivity and victim protection, and have broadly upheld dismissals for perpetrators of sexual misconduct and workplace harassment. if the victim's account is consistent and specific, it may be recognized as grounds for discipline, even if there is a lack of objective evidence.
failure to follow work orders: Persistent refusal or defiance of legitimate work orders is grounds for disciplinary termination. however, if the work order itself is unreasonable or unlawful (e.g., forcing you to perform an illegal act), you cannot be disciplined for refusing it.
2.2.2. Appropriateness of Disciplinary Measures (Principle of Proportionality)
even if grounds for discipline exist, the consequence of dismissal must not be disproportionately harsh to the misconduct. this is known as "proportionality of discipline. in determining the amount of discipline, the court considers the following factors: (1) the motivation and circumstances of the misconduct, (2) the repetition of the misconduct, (3) past work attitude and reward performance, and (4) equity with other workers for similar offenses. 2 For example, dismissing an employee with a good attitude immediately because he or she has been late for work several times would be invalid as an abuse of discretion.
2.3. Dismissal due to management reasons (layoffs): a desperate attempt to survive
a layoff is a reduction in the workforce due to the employer's business needs, not the worker's fault. article 24 of the Labor Standards Act stipulates four strict requirements, as it deprives workers of their right to survival even though they are not at fault.
requirementdetails and judgment criteria 1. urgent business need there must be objective reasonableness to deal with a future crisis, if not a bankruptcy crisis. recent case law has broadly recognized the need for productivity improvements or restructuring, but layoffs for the sole purpose of increasing profits are not allowed. 2. efforts to Avoid Layoffs
every effort should be made to make layoffs a last resort, including streamlining business policies, halting new hires, furloughs, voluntary retirement, and rotating leaves of absence. it is illegal to make layoffs while continuing to hire new employees.
3. reasonable selection of candidates you must not discriminate on the basis of sex, national origin, religion, or union activity. establish fair criteria that take into account work performance, seniority, number of dependents, and the likelihood of reemployment. 4. consulting with worker representatives
worker representatives must be notified at least 50 days prior to termination and consulted "in good faith" on methods and criteria for avoiding termination. formal notification does not count as consultation.
failure to fulfill any of these four requirements will result in unfair dismissal. in particular, the "efforts to avoid dismissal" and "good faith consultation" requirements are the most frequently violated by employers and are often the central issues in legal disputes.
3. analyze the latest legal developments and issues around poor performance in dismissal (PIP)
a key topic in corporate HR management these days, "poor performance" is generally categorized as a type of dismissal, but the criteria for determining it is very tricky and requires a separate legal review. simple poor performance is not a reason for dismissal, and courts apply a very strict test to determine this.
3.1. Requirements for determining the justification for dismissing a low performer (analysis of Supreme Court cases)
in determining whether a dismissal for poor performance is justified, the court will examine the following factors in a step-by-step manner
fairness and objectivity of evaluation: The criteria for personnel evaluation must be objective and not arbitrary. a dismissal based simply on a supervisor's subjective evaluation or a forced quota system (e.g., a bottom 10% unconditional C grade) is unlikely to be upheld. courts will look to see if the evaluation was specific and the goals were realistic.
poor performance: The employee must be significantly underperforming and disruptive, not just in the bottom of the class. absolute underperformance, not relative underperformance, must be demonstrated.
actual opportunity to improve (adequacy of PIP): This is the most important issue. the company should offer a performance improvement program (PIP) to underperformers. however, the program shouldn't just be a gimmick to build a case for termination. it's important to ensure that there's actual on-the-job training, mentoring, and job reassignment.
lack of potential for improvement: Termination is only justified if the employee has not improved despite being given ample opportunity to do so, and if it is determined that there is no room for improvement in the future.
3.2. In-depth analysis of a key case: Software Company B vs. Research Organization D
B Software Company (dismissal justified): the court ruled that the company was justified in terminating an employee who received the lowest rating even though the company had implemented a PIP for cumulative low performers for more than three years, the evaluation process was fair, and the employee was given a second chance to improve after the first PIP. this was largely due to the company's systematic opportunities for improvement over a long period of time.
Research Organization D (wrongful dismissal): on the other hand, in the case of Research Organization D, the company excluded low performers from participating in a project due to a lack of budget and terminated them without giving them a chance to perform. the court ruled that this was unfair dismissal because "the employee was not given the opportunity to improve his performance."
strategic implications: In order to legally terminate underperformers, companies should accumulate objective evaluation data over a long period of time, at least one to two years, and keep thorough records of a substantial development program (including interview logs, training records, and assignment results).
4. procedural Requirements for Termination and Legal Issues in the Digital Age
no matter how justified the reason for dismissal, if the procedure is violated, the dismissal will be invalid. the Labor Standards Act has strict procedural regulations to prevent arbitrary dismissal by employers and to ensure workers' defense rights.
4.1. Dismissal notice system (Article 26 of the Labor Standards Act)
an employer must give at least 30 days' notice before dismissing an employee. if the employer fails to give 30 days' notice, the employer must immediately pay at least 30 days' regular wages (termination notice allowance).
calculation of severance pay: Calculated based on regular wages, which includes not only basic pay but also regular and uniformly paid benefits. for salaried employees, it is calculated by multiplying the regular daily wage by 30.
exceptions:
probationary workers with less than 3 months of employment.
if the business is unable to continue due to a natural disaster.
the worker intentionally causes significant disruption to the business or property damage (must fall under the reasons specified by the MOHL).
legal note: Payment of severance pay does not justify unfair dismissal. it is only a "financial buffer against sudden job loss" and is a separate legal requirement from the justification for dismissal (Article 23). therefore, you can apply for unfair dismissal relief even if you have received the allowance.
4.2. Obligation to give written notice of the reason for dismissal (Article 27 of the Labor Standards Act)
this is the most important procedural requirement for the validity of a dismissal. the employer must notify the employee in writing of the reason for dismissal and the time of dismissal to be effective.
purpose: To encourage employers to carefully decide whether to dismiss employees, and to ensure that employees are clearly aware of the reasons for dismissal so that they can take legal action (such as applying for relief).
what tosay: It's not enough to simply say "fired for violation of company policy". you must specify the specific facts of the employee's misconduct and the applicable provisions of the employment rules.
4.3. Debating the effectiveness of "digital dismissals": texts, KakaoTalk, and emails
as smartphones and messengers have become the center of the workplace, there has been a surge in the number of cases of termination notifications via KakaoTalk or text messages, but this is a very risky legal practice.
invalidity in principle (KakaoTalk/SMS): the Supreme Court and lower court precedents have strictly interpreted "written" in Article 27 of the Labor Standards Act and viewed "paper documents" as the principle. simply sending a text or KakaoTalk notice saying, "Don't come to work tomorrow," or sending a photo of a dismissal notice is invalid as a violation of procedure. the court considers this to be "an excessively light treatment of a serious communication to terminate the employment relationship" and contrary to the legislative intent of the Labor Standards Act.
exceptions (email): There is case law that recognizes the validity of emails as an exception if the employee was fully aware of the termination and was not prevented from reacting to it, such as if the email was sent using the company's official electronic approval system, or if the email was accompanied by a document stating the specific reasons and timing and signed by the CEO. however, this is also highly contested and not recommended.
recent case trends (2023-2024): recent case law has taken a stricter stance on Kakaotalk dismissals. in a case where the actual manager notified the employee of the termination via KakaoTalk, the court dismissed the case on the grounds that the employee was not an employee under the Labor Standards Act, but the logic of the decision suggests that if the employee had been recognized as an employee, the termination would have been invalidated due to the lack of written notice.
practical advice: Employers should always deliver paper termination notices in person and obtain a receipt, or send them by certified mail to prove delivery. choosing to terminate on KakaoTalk for convenience is a quick way to lose.
5. small Workplace Exceptions and the Absolute Dismissal Period
the Labor Standards Act has different scope depending on the size of the workplace, and there are strong protections against dismissal during certain periods.
5.1. Exclusions and limitations for workplaces with less than 5 employees
in order to ease the burden on small business owners, key provisions of the Labor Standards Act do not apply to businesses with fewer than five full-time employees. this has been pointed out as a factor that reinforces the dual structure of the labor market.
classificationworkplaces with 5 or more employeesworkplaces with less than 5 employeesrationale just cause (Article 23) necessary (unfair dismissal without it) not required (free to dismiss) article 11 of the Act written notice (Article 27) required (void if breached) not required (verbal dismissal possible) article 11 of the Act application for unfair dismissal relief can apply to the Labor Commission not possible (civil action only) article 28 of the Act notice of dismissal (Article 26) applicable (30 days notice/allowance) yes (30 days' notice/benefits) article 11, Article 26 absolute dismissal prohibition applicable (Industrial Accident/Maternity Period) applicable (Industrial Accident/Maternity Period) article 23(2) of the Act
key Issue: Employees of businesses with fewer than 5 employees cannot apply for relief from the Labor Commission if they are dismissed for unfair reasons. a civil dismissal invalidation lawsuit is possible, but since the "just cause" provision does not apply, it requires proof of tort (abuse of rights) or breach of contract under civil law, and is less effective in terms of time and cost.
dealing with fake under-5 workplaces: In recent years, there has been an increase in the number of cases where a company has more than five employees, but is disguised as less than five by splitting the workplace on paper or not registering employees. in this case, if the worker can prove an actual employment relationship and the number of workers at any given time, the workplace will be recognized as a five-employee workplace and can proceed with a claim for unfair dismissal. the court will judge the actual integration of HR and labor management rather than the formal business registration.
5.2. Absolute Dismissal Prohibition Period (Article 23(2) of the Labor Standards Act)
no matter how legitimate the reason for dismissal (disciplinary reasons, management needs), there is a period of time when dismissal is absolutely prohibited by law. any dismissal made during this period is invalid, regardless of the reason.
during and 30 days after a work-related injury or illness: You can't fire an employee who is on workers' compensation approved medical treatment. this is to ensure their survival during their time out of the workforce and to help them return to work.
during and 30 days after prenatal and postnatal leave: Dismissal of a female employee on maternity leave is also strictly prohibited.
6. relationship between unfair labor practices and dismissal
article 81 of the Trade Union and Labor Relations Adjustment Act (Union Act) prohibits unfair labor practices by employers. if the dismissal is due to a worker's legitimate trade union activities, it is more than just an unfair dismissal, it is an unfair labor practice subject to criminal penalties.
prohibition of disadvantageous treatment: It is unlawful to discharge a worker for joining a union, organizing a union, or engaging in lawful collective action.
burden of proof and standard of review: Employers often cite ostensible disciplinary reasons (poor attendance, failure to follow instructions, etc.), but in reality, they dismiss workers because of their aversion to union activities. the Labor Commission and courts will consider the timing of the dismissal (e.g., shortly after the union's establishment), the mildness of the disciplinary reason, the equity with other workers (harsh discipline only for union members), and the employer's anti-union behavior to presume and determine the "intent to commit unfair labor practices. if found to be an unfair labor practice, the dismissal is invalid and the employer may be punished by imprisonment for up to two years or a fine of up to 20 million won.
7. unfair Dismissal Remedy Procedures and Strategic Responses (Labor Commission)
an employee who has been unfairly dismissed may file an application for relief with the local labor commissioner in charge of the workplace within three monthsof the date of dismissal. this is a key tool for workers' rights relief as it is cheaper and quicker than court proceedings.
7.1. Strategies for applying for relief and writing a statement of reasons
application stage: Fill out and submit the 'Application for Relief from Unfair Dismissal' form. the key is to write a 'reason statement'. the statement of reasons should logically demonstrate the unfairness of the dismissal.
key points for writing a statement of reasons :
prove the absence of cause: Refute the company's alleged reason for disciplinary action with concrete evidence (emails, IMs, coworker statements, etc.).
claim a violation of equity (excessive punishment): Emphasize the violation of the principle of proportionality by arguing, "It's discriminatory to fire me, while coworker A was given a warning for the same mistake." This is a powerful defense. this is a very powerful defense.
attacking procedural defects: Focus on procedural flaws, such as a lack of opportunity to be heard or a lack of written notice. procedural violations invalidate a termination, regardless of the reason.
utilize the right to renewal doctrine: If you are a contract worker, argue that you have a legitimate expectation of renewal and that the refusal to renew without a reasonable cause is wrongful termination.
7.2. Types of hearings and relief orders
hearing Conference: A hearing conference is held within about 60 days after the case is filed. a referee committee composed of a public member, an employee member, and an employer member interrogates both labor and management and determines the facts.
reinstatementorder: If unfair dismissal is recognized, the employee is usually ordered to be reinstated to his or her job and paid the equivalent of the wages that would have been earned if the employee had worked normally during the period of dismissal.
monetary compensation order system: If the employee does not want to be reinstated due to a breakdown of trust with the company, the employee is paid money (wage equivalent + additional compensation in the form of consolation) instead of reinstatement.
7.3. Enforcement and Judicial Proceedings
the Labor Commission's remedy order is enforceable. if the employer fails to comply within the deadline, he or she will be fined up to 30 million won ($30,000) once and up to four times over two years. the employer can appeal to the Central Labor Commission for a review or file an administrative lawsuit, but the effect of the remedy order is not suspended until a final judgment is rendered, so the employer runs the risk of being subject to a compulsory payment.
8. FAQ: Frequently Asked Questions about Wrongful Dismissal
Q1. What is the difference between a resignation and a dismissal?
A. A dismissal is a unilateral termination of the employment relationship by the employer, while a resignation is a consensual termination where the company invites you to resign and you agree to it. If you agree to a resignation and submit a resignation letter, it is not a dismissal and you cannot apply for unfair dismissal relief. Therefore, you should never sign a resignation letter if you feel you are being unfairly treated.
Q2. Can I fire someone at will during my probationary period?
A. No. Even during the probationary period, you need "just cause" to fire someone. however, the range of justifications for termination is slightly broader than for hires. probationary workers must also be notified in writing of the reason and timing of their termination, or it will be unfair dismissal.
Q3. I was unfairly dismissed from my job at a workplace with fewer than 5 employees, what can I do?
A. If you work for a business with fewer than 5 employees, you are not eligible for labor board remedies and the "just cause" provision does not apply. However, you may be entitled to notice pay (30 days' regular pay). You may also file a civil lawsuit in court if the termination was a breach of contract or tort.
Q4. How much can I get if I win my claim?
A. If you are reinstated, you will receive your full wages from the date of termination to the date of reinstatement. if you apply for a monetary compensation order, you will typically be awarded 1-3 months of back pay in addition to your wages during the termination period, but this will vary depending on the case.
Q5. I received a termination notice via KakaoTalk, is it valid?
A. In principle, it is invalid. article 27 of the Labor Standards Act requires that the reason and time of dismissal be notified in 'writing'. it is an established position of the Supreme Court that KakaoTalk or text messages do not qualify as a legitimate written notice.
9. conclusion and recommendations
legal disputes over unfair dismissal are a matter of survival for workers and a business risk for employers. south Korea's labor law system and case law severely restrict dismissals and are evolving to emphasize procedural justification.
recommendation for workers: Collect evidence (work records, conversation recordings, emails, etc.) from the first sign of termination. it's especially important to demand a written notice to confirm your termination, especially if you were fired verbally. rather than reacting emotionally, collecting evidence and filing for relief quickly (within three months) will help you recover your rights.
recommendations for employers: "Letting people go" is one of the most sophisticated areas of legal risk management. in addition to proving the reason for disciplinary action, you need to follow the procedures in the employment rules, fulfill the written notice obligation, and make sufficient efforts to avoid dismissal. it is important to keep in mind that hasty or emotional terminations on KakaoTalk will only result in greater financial costs and organizational disruption.