Unfair Dismissal Lawyer: Handling Your Remedy Application

Just Cause for Dismissal

The Labor Standards Act (근로기준법) does not list what counts as just cause. Courts look at whether the worker is responsible for a reason that, by general social standards, makes it impossible to continue the employment relationship. Even for the same misconduct, they consider how it happened, whether it was repeated, the harm to the company, fairness compared with other employees, and the worker's conduct at work until then.

For a disciplinary dismissal, the conduct must fall under the grounds for discipline set out in the rules of employment or the collective agreement, and choosing dismissal, the heaviest disciplinary measure, must not be excessive. For an ordinary dismissal based on poor performance, the issues are whether the worker's ability is objectively and significantly lacking, and whether the worker failed to improve even after being given a chance to improve, such as training or a transfer.

Dismissals Invalid Because of Procedural Violations

A dismissal given only verbally or by text message, without a written notice stating the reason and the date of dismissal, is invalid for that reason alone. There are cases where an email was accepted as a written notice when its content was specific and the worker actually received and read it, but a dismissal made with a single line on KakaoTalk or by text message is highly open to dispute.

If the rules of employment provide procedures such as notifying the worker to attend a disciplinary committee and giving an opportunity to explain, those procedures must be followed as written. A dismissal may be found invalid if the notice period was not observed or if the opportunity to explain was given only as a formality.

Failure to give advance notice of dismissal (해고예고) is a separate matter from the validity of the dismissal itself. Even if the dismissal was justified, a worker dismissed without advance notice can claim a dismissal notice allowance (해고예고수당), and the employer is subject to criminal punishment.

Can Recommended Resignation (권고사직) or Contract Expiry Also Be Dismissal?

If the company urges a worker to resign and the worker submits a resignation letter, the employment relationship is in principle regarded as ended by mutual agreement. However, if it turns out that the worker wrote the resignation letter only because of pressure that they would be dismissed otherwise, and had no genuine intention to quit, it is treated in substance as a dismissal.

A fixed-term worker may also be recognized as having a right to expect renewal if the contract or the rules of employment contain renewal conditions, if most colleagues have continued to be renewed, or if the work is of a permanent nature. In that case, a refusal to renew without a reasonable ground is treated the same as an unfair dismissal.

• Write down, by date, how you came to write the resignation letter
• Keep recordings or messages of the meeting where you were urged to resign and of any statement that you would be dismissed
• Check the contract renewal provisions and your colleagues' renewal history

Labor Relations Commission (노동위원회) Remedy Application Procedure

1. File the remedy applicationFile with the Regional Labor Relations Commission (지방노동위원회) that has jurisdiction over the workplace location within 3 months of the dismissal date
2. Exchange of reply and statement of reasonsReceive the company's reply, then submit a rebuttal statement of reasons and evidence
3. Investigation and settlement recommendationAn investigator conducts a fact-finding investigation; if the parties reach an agreement, the case ends in a settlement
4. HearingBoth sides give statements before 3 public interest members, and the decision is notified on the same day
5. Service of the written decisionIf the application is accepted, the Commission orders reinstatement and payment of an amount equivalent to wages; if a party objects, it may request a review by the National Labor Relations Commission (중앙노동위원회) within 10 days
6. Administrative lawsuitFile with the Seoul Administrative Court (서울행정법원) within 15 days of receiving the National Labor Relations Commission's review decision

The Labor Relations Commission may impose a compulsory performance fine (이행강제금) on an employer who does not comply with a remedy order. If you do not want to be reinstated, you can also request an order for monetary compensation at the time of filing.

Labor Relations Commission (노동위원회) or Court Lawsuit: Which to Choose?

The two procedures can also be pursued together. If little time remains before the 3-month deadline, it is common to file the remedy application first to protect your rights, and then decide whether to add a court lawsuit after considering the evidence and costs.

Rules on Dismissal

Article 23(1), Article 27, and Article 28 do not apply to workplaces that regularly employ 4 or fewer workers, so a remedy application to the Labor Relations Commission is not possible there. Advance notice of dismissal (Article 26) applies regardless of size.

What to Do Right Away After a Dismissal Notice

• Confirm the dismissal date and mark the day that is 3 months later on your calendar.
• Do not delete the original dismissal notice, text messages, or emails; keep them.
• Before signing a resignation letter or settlement agreement, have its content reviewed.
• Obtain your employment contract, rules of employment, and the disciplinary committee notice.
• Gather materials to rebut the incident cited as the reason for dismissal (work messenger records, colleagues' statements).
• Check the number of regularly employed workers to see whether the workplace has 5 or more.