The Significance and Types of Dismissal
Definition of dismissal
- "Dismissal" means that the employer terminates the work relationship unilaterally regardless of the worker's intention, regardless of the name or procedure actually called in the workplace. (see Supreme Court Decision, Oct. 26, 1993, 92 Da 54210)
Types of dismissal
- Labor Standards Act does not specifically differentiate the types of dismissal.
- However, Dismissal can be divided into "general dismissal" and "dismissal for management reasons" depending on whether the reason for dismissal is the worker or the employer.
The Legitimacy of Dismissal
Justification of reasons
- An employer cannot fire workers without justifiable reasons. (Article 23 (1) of the Labor Standards Act)
- Therefore, a general dismissal without a justifiable reason is an unfair dismissal, the worker can apply to the Labor Relations Commission for unfair dismissal relief. (Article 28 of the Labor Standards Act)
Justification of procedure
- The Labor Standards Act restricts the procedures for dismissal through notice of dismissal(Article 26 of the Labor Standards Act) and written notice of dismissal(Article 28 of the Labor Standards Act).
· A dismissal that violates the obligation to give written notice, such as the reason for dismissal, shall not be effective. (Article 27 (2) of the Labor Standards Act)
· However, dismissal without notice is valid. (Constitutional Court decision, Jul. 19, 2001 99 Hunma 663)
- The Supreme Court believes that layoffs made in violation of procedural restrictions set forth in collective agreements and employment rules are invalid, except in exceptional cases where procedural defects repaired. (Supreme Court Decision, Jul. 9. 1991, 90 Da 8077, Feb. 12, 2009, 2007 Da 62840)
※ However, if the procedure is implemented again, it could be a legitimate dismissal.
- Therefore, if ordinary dismissal has not undergone the above due process, the dismissal will not be valid.
Determine whether or not a dismissal is appropriate
Cases Acknowledged for Dismissal
- Natural retirement
· The employment rules or collective agreements stipulate the occurrence of any cause as a reason for retirement. Except where the grounds for natural retirement appear to be the cause of automatic extinction of the working relationship (e.g. death, retirement age, expiration of the working contract period, etc.), if the procedure is different from natural retirement or disciplinary dismissal, natural retirement also corresponds to dismissal prescribed in Article 23 (1) of the Labor Standards Act. (see Supreme Court Decision, Sep. 3, 1999, 98 Du 18848, and Oct. 25, 2007, 2007 Du 2067)
· If the natural retirement system stipulated in the employment rules corresponds to dismissal, the employer must express his/her intention to terminate the work relationship before the work relationship can be terminated. (Supreme Court Decision, Feb. 14, 1997, 96 Da 43904, and Feb. 12, 2009, 2007 Da 62840)
- Dismissal at one's own request
· In the case of forcing a worker who has no intention of resigning, although in the form of dismissal at one's own request, to submit his/her resignation, it is the case of dismissal. (Supreme Court Decision, Jun. 14, 2002 2001Du 11076)
※ “Dismissal at one's own request” refers to the employee's voluntary resignation and the acceptance of the resignation. (Source: Issued by National Labor Relations Commission, page 232 of New Labour Case Summary)
- Recommended resignation
· If an employerforced the worker to resign by saying to a worker, "If you don't submit your resignation, I will fire you." If it is accepted, even if you retire in the form of a recommendation or dismissal, it is the result of the forced resignation, so such dismissal should be regarded as a real dismissal. (Supreme Court Decision, Jun. 14, 2002, 2001 Du 11076, Nov. 25, 2005, 2005 Da 38270)
※ “Recommended resignation” means that the employer encourages the employee to retire and the employee resigns according to his/her free will. (Source: Issued by National Labor Relations Commission, page 232 of New Labour Case Summary)
- Collective resignation
· Dismissal at one's own request following the submission of a collective resignation under the direction of the CEO shall constitute dismissal. (Supreme Court Decision, Apr. 29, 1994, 93 Nu 16185)
· If the worker has submitted resignation letter according to the employer's resignation order, it constitutes dismissal. (Supreme Court Decision, Jul. 12, 1991, 90 Da 11554)
- Expiration
· Even if a worker is hired for a recovered period of time, the renewal of the period is repeated over a long period of time. And If the specified period becomes only a formality, the employer's refusal to renew the contract without justifiable reasons is invalid, as is the dismissal. (See Supreme Court Decision, Jan. 11, 1994, 93 Da 17843, Apr. 14, 2011, 2007 Du 1729, and Feb. 13, 2014, 2013 Da 51674)