CONTENTS
- 1. Workplace Harassment Investigation | The Definition of Workplace Harassment
- - Corporate Legal Liability and Management Obligations
- 2. Workplace Harassment Investigation | Requirements for Workplace Harassment
- - Procedures for Reporting and Investigating Workplace Harassment
- 3. Workplace Harassment Investigation | Summary of Required Measures When Workplace Harassment Occurs
- - Criteria for Imposing Administrative Fines
- 4. Workplace Harassment Investigation | Case-Law Standards on the Duty to Investigate and Take Measures
- - Corporate Risk Prevention Strategy
- - Workplace Harassment Risk Checklist for Companies
1. Workplace Harassment Investigation | The Definition of Workplace Harassment
A workplace harassment investigation is an important duty that a company must carry out itself.
Under Article 76-2 of the Labor Standards Act, workplace harassment is defined as an act by which an employer or employee, by taking advantage of superiority in position or relationship at work, causes physical or mental suffering to another employee beyond the appropriate scope of work, or worsens the work environment.
No employer or employee shall, by taking advantage of superiority in position or relationship at work, cause physical or mental suffering to another employee beyond the appropriate scope of work, or worsen the work environment.
Here, superiority refers to a social or organizational power structure that the other party finds difficult to resist, such as a chain-of-command relationship, rank, length of service, educational background, age, or influence, and it includes various forms of harassment that exploit such superiority, including verbal abuse, physical violence, ostracism, improper work orders, and insults.
Corporate Legal Liability and Management Obligations
Workplace harassment goes beyond a simple personnel matter and is a matter in which the law imposes on the employer an active duty to investigate, a duty to protect the victim, and a duty to discipline and take measures against the perpetrator.
If the employer fails to fulfill these duties, this can lead to administrative fines, imprisonment, or a claim for damages, and it can directly result in significant managerial losses, such as the breakdown of organizational culture, damage to external reputation, and the loss of talent.
Accordingly, a company should put in place a system for legal prevention and follow-up measures regarding workplace harassment in advance.
2. Workplace Harassment Investigation | Requirements for Workplace Harassment
A workplace harassment investigation is conducted when an act that meets the following requirements for workplace harassment occurs.
▶Actor
Employee (working at the same company as the victim, or, in exceptional cases, including a dispatched worker)
Use of superiority
▶Superiority in Position
▶Superiority in Relationship
▶Act Beyond the Appropriate Scope of Work
Whether harm has occurred
Physical or mental suffering, or interference with the performance of work due to a worsened work environment
Procedures for Reporting and Investigating Workplace Harassment
The reporting and investigation of workplace harassment proceed according to the following procedure.
1. Receipt of a Report
If an act of workplace harassment occurs, anyone may file a report with the employer.
A workplace harassment report may be submitted anonymously or in writing, by telephone, by email, or otherwise, and if the employer is aware of it or the victim alleges it, the incident is deemed to have occurred.
2. Duty to Investigate
Once a workplace harassment report is received, the employer must conduct an objective investigation to confirm the facts without delay.
If the employer fails to conduct the investigation, an administrative fine of up to 5 million won is imposed.
3. Determining the Type of Investigation
- Summary Investigation : If the victim and the perpetrator can reach an agreement, such as an apology and a promise to prevent recurrence, the case is closed.
- Formal Investigation : If the victim requests a formal investigation or the act is serious, a formal investigation is conducted.
The employer should determine in advance the direction, subject, and method of the investigation (interviews, securing of materials, etc.), and it is advisable to ensure objectivity through an investigative body or an external expert organization.
3. Workplace Harassment Investigation | Summary of Required Measures When Workplace Harassment Occurs
When workplace harassment occurs, a company's required measures and the disadvantages of failing to meet those obligations are as follows.
Corporate Obligations | If Violated |
Objective Investigation Without Delay | Administrative fine of up to 5 million won |
Protection of the Victim During the Investigation | Administrative fine of up to 5 million won |
Protection of the Victim After the Investigation | Administrative fine of up to 5 million won |
Measures Against the Perpetrator After the Investigation | Administrative fine of up to 5 million won |
Prohibition of Unfavorable Treatment | Imprisonment of up to 3 years or |
Prohibition of Disclosure of Confidential Information | Administrative fine of up to 5 million won |
Sanctions When the Employer Commits Harassment | Administrative fine of up to 10 million won |
Criteria for Imposing Administrative Fines
According to Annex 7 of the Enforcement Decree of the Labor Standards Act, the criteria for imposing administrative fines for workplace harassment are as follows.
| Violation | Amount of Administrative Fine (Unit: 10,000 won) | ||
| 1st | 2nd | 3rd | |
| If the employer fails to conduct a workplace harassment investigation | 300 | 500 | 500 |
| If the employer fails to take appropriate measures such as a change of workplace | 200 | 300 | 500 |
| If the employer fails to take necessary measures such as disciplinary action or a change of workplace | 200 | 300 | 500 |
| If a person discloses confidential information learned during a workplace harassment investigation to another person | 300 | 500 | 500 |
| If the employer commits workplace harassment on multiple occasions or harasses two or more persons | 500 | 1000 | 1000 |
| If the employer commits workplace harassment | 300 | 1000 | 1000 |
| If an employee who is a relative of the employer commits workplace harassment | 200 | 500 | 1000 |
4. Workplace Harassment Investigation | Case-Law Standards on the Duty to Investigate and Take Measures
Regarding a company's duty to investigate and take measures in workplace harassment cases, the courts have, through a series of decisions, clearly set out the standards for an "objective investigation" and "appropriate protective measures."
In particular, where a company has neglected its duty to protect the victim and the procedure for objectively confirming the facts, or has instead subjected the victim to unfavorable treatment, the courts have even recognized liability for damages, so a company must keep this in mind.
▶Objective Investigation
In the judgment of the Chungju Branch of the Cheongju District Court rendered on April 6, 2021, in case No. 2020Godan245, the court held that hearing only the explanation of the perpetrator's side without hearing the statement of the victim who had reported the workplace harassment meant that the objective investigation required under the Labor Standards Act had not been conducted.
The court also held that the failure to go through a procedure for hearing the opinions of the victim and witnesses during the personnel committee's deliberation was likewise inappropriate.
▶Appropriate Protective Measures
In the judgment of the Suwon District Court rendered on April 15, 2010, in case No. 2008Gahap5314, the court held that the company's measures of placing a victim who had reported sexual harassment on standby for reassignment and failing to assign appropriate work even after the transfer clearly constituted unfavorable treatment.
In particular, with respect to the company's hearing only the statements of the perpetrator and those around him and failing to put in place appropriate protective measures and recurrence-prevention measures for about seven months despite the victim's requests, the court issued a judgment ordering payment of 30 million won in consolation money.
Corporate Risk Prevention Strategy
Workplace harassment is a complex matter that connects to personnel risk within the organization, legal sanctions, deterioration of external reputation, employee attrition, and even the risk of an investigation by the Ministry of Employment and Labor.
Accordingly, a systematic prevention and response strategy such as the following is necessary.
① Establishing a Workplace Harassment Response System
Reflecting workplace harassment prevention and response rules in the rules of employment
Establishing a process for receiving, investigating, addressing, and following up on cases
Putting in place internal rules for an investigative body or a system for cooperation with an external expert organization
② Regular Preventive Training and Risk Checks
Regular training by job rank
Internal risk checks and assessment of organizational culture
③ Investigation Procedure Manual and Operation of a Task Force
Deploying a task force when a case occurs
Establishing in advance the scope, method, and schedule of the investigation and a confidentiality protection plan
④ Establishing a System for Ongoing Advice from Legal Professionals
Initial legal advice and risk assessment when a case occurs
Ensuring the legal validity of disciplinary actions
Workplace Harassment Risk Checklist for Companies
Item to Check | Checked |
|---|---|
Whether workplace harassment prevention and response rules are reflected in the rules of employment | ☐ |
Whether a manual exists for the reporting, investigation, and response process when a case occurs | ☐ |
Whether workplace harassment prevention training is conducted at least once a year | ☐ |
Whether a system for cooperation with an investigative body and an external investigative organization is in place | ☐ |
Whether the rules on disciplinary action, victim protection, and confidentiality comply with the law | ☐ |
Whether a response manual exists in preparation for a report to the Ministry of Employment and Labor | ☐ |
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