Definition of dismissal invalidity confirmation suit
Dismissal invalidity confirmation suit
- Dismissal invalidity confirmation suit is to confirm the nullification of the dismissal made by unilateral intention of the employer.
Relationship between application for unfair dismissal relief and dismissal invalidity confirmation suit
Relationship between application for unfair dismissal relief and dismissal invalidity confirmation suit
- Article 28 of the Labor Standards Act opens the way for workers who have been unfairly dismissed to apply for relief to the Labor Relations Commission, but this does not translate into deprivation of jurisdiction in civil lawsuits over layoffs. (Supreme Court Decision Jul. 12, 1991, 90 Da 9353)
- Application for unfair dismissal relief and dismissal invalidity confirmation suit are separate system, so both can be selected or processed at the same time.
· However, if one of the civil suits for unfair dismissal or dismissal invalidity confirmation is confirmed, the other will be dismissed because there is no interests in litigation. (Supreme Court Decision, Jul. 28, 1992, 92 Nu 6099 and Apr. 23, 1996, 95 Nu 6151)
Burden of proof
Burden of proof
- The employer shall bear the burden of proof of the justifiable cause of dismissal in dismissal invalidity confirmation suit. (Supreme Court Decision, Aug. 14, 1992, 91 Da 29811 and Apr. 27, 1999, 99 Du 202)
Procedure of dismissal invalidity confirmation suit
Procedure of dismissal invalidity confirmation suit
- Dismissal invalidity confirmation suit will be carried out in the order of [filing of a suit → service of process → submission of a written answer → pleading and Evidence Investigation → pronouncement of judgment → (appeal) → (appeal to a higher court) → termination of a lawsuit]. (Source: Supreme Court Electronic Civil Service Center)
Effects of dismissal invalidity confirmation suit
Reinstatement
- If a worker received decision on acceptance from dismissal invalidity confirmation suit, the dismissal is invalid and the worker will recover the original working relationship.
Wage payment for the period of dismissal
- If a worker received decision on acceptance from dismissal invalidity confirmation suit, the worker may demand for wages under the text of Article 538 of the Civil Act.
- Wage and interim profit deduction during the dismissal period
· Among the wages that an employee can receive, the limit of the business suspension allowance shall not be subject to the interim revenue deduction, and shall be deducted only within the scope of the amount exceeding the business suspension allowance. (Supreme Court Decision, Dec. 13, 1991, 90 Da 18999 and Mar. 13, 2014, 2011 Da 95519)
※ “Business suspension allowance”means an allowance that the employer must pay to the worker in case the business is closed for reasons attributable to the employer. (Article 46 of the Labor Standards Act).