Unfair Dismissal | Case Leading to Dismissal of the Workers' Appeal Seeking Revocation of the Reexamination Decision on the Remedy Against Unfair Dismissal

🔗Unfair dismissal means an employer dismissing an employee without justifiable grounds.

An employee who has been unfairly dismissed may apply for a remedy procedure for the unfair dismissal through the Labor Relations Commission.

When dismissing an employee, an employer must have justifiable grounds prescribed by law, and otherwise the dismissal constitutes an unfair dismissal, for which the employee may obtain a legal remedy.

∙When the dismissal was carried out without justifiable grounds
∙When the requirements restricting dismissal for managerial reasons were not met
∙When the dismissal was carried out in violation of a specific ground prohibiting dismissal prescribed in the Labor Standards Act, the Act on Equal Employment and Support for Work-Family Balance, the Trade Union and Labor Relations Adjustment Act, etc.
∙When the dismissal was carried out by excessively assessing the disciplinary measure even though the ground was not one warranting dismissal
∙When the dismissal was carried out in violation of the dismissal procedure prescribed in statutes or in a collective agreement or rules of employment
∙When the dismissal was carried out during a period in which dismissal is not permitted

A lawsuit to revoke a remedy retrial ruling for unfair dismissal is an administrative litigation in which a party, dissatisfied with the retrial ruling on a remedy for unfair dismissal by the National Labor Relations Commission, requests the court to revoke that ruling.

Where a worker has received a ruling from the National Labor Relations Commission ordering reinstatement or compensation, the employer may, being dissatisfied with it, file a lawsuit to revoke the remedy retrial ruling for unfair dismissal with the high court.

This lawsuit is heard by the high court, and if a party is dissatisfied thereafter, they may file a final appeal with the Supreme Court.

The Supreme Court judges primarily whether the high court’s judgment is sound as a matter of law.

The plaintiffs claimed that the dismissal pre-notice document merely listed the personnel regulations and did not state a specific ground for dismissal.

However, the client company's personnel regulations specify ‘confirmation of a sentence of imprisonment without labor or heavier’ as a ground for removal, and the plaintiffs actually received a suspended sentence of imprisonment with labor in their criminal trial, which falls under that ground.

The unfair dismissal specialist attorney therefore argued that, because the ground could be specifically ascertained, it could not be said that a valid dismissal notice required the criminal case number or the gist of the judgment to be stated.

The plaintiffs argued that criminal punishment is not a ground for automatic termination of the employment relationship.

However, the client’s personnel regulations provide that a person ‘for whom 3 years have not passed since the sentence of imprisonment or heavier was completed or it was finally determined that the sentence would not be executed’ may not be appointed as an employee, and that the person shall be dismissed if such a ground arises or is discovered.

The specialist attorney emphasized that, as long as such a regulation clearly exists and is difficult to regard as particularly unjust under social conventions, its purpose should be respected.