CONTENTS
- 1. Labor Standards Act Lawsuit, the Detailed Circumstances
- - Labor Standards Act Lawsuit, the Relevant Statutes and Precedents
- 2. Labor Standards Act Lawsuit, the Court's Determination
- 3. Labor Standards Act Lawsuit, Daeryun's Strategy
1. Labor Standards Act Lawsuit, the Detailed Circumstances
The plaintiff who filed this lawsuit under the Labor Standards Act was a contract-based chauffeur for A, the chairman of OO University (the defendant).
Before the three-month probationary period of the employment contract concluded with the defendant ended, the plaintiff was recommended to resign by the defendant and, on that day, returned the keys to the vehicle the plaintiff had been operating.
One month later, however, the plaintiff sent a text message to the president of OO University and others stating that the plaintiff had been subjected to 🔗unfair dismissal.
The plaintiff argued that the employment contract with OO University had not been terminated by mutual agreement but that the plaintiff had been unilaterally dismissed.
The plaintiff also argued that, despite having worked faithfully as A's chauffeur, the plaintiff had been dismissed without just cause and that, in the process, the defendant had failed to observe the procedures prescribed by the Labor Standards Act; on this basis, the plaintiff filed a lawsuit seeking confirmation of the nullity of the dismissal.
In response, the defendant countered that the plaintiff's return of the vehicle keys was a manifestation of a genuine intent to resign and that the employment contract had been terminated by the defendant's acceptance of it.
The defendant further argued that, because the plaintiff was in the probationary period at the time, the restrictions on dismissal were relaxed compared with ordinary cases, and that, considering the plaintiff's work attitude and inappropriate conduct, the plaintiff was unsuitable for the chauffeur position; on this basis, the defendant argued that the dismissal of the plaintiff was justified.
Labor Standards Act Lawsuit, the Relevant Statutes and Precedents
▣ Article 23 of the Labor Standards Act (Restriction on Dismissal, etc.)
(1) An employer shall not, without just cause, dismiss, lay off, suspend, transfer, reduce the wages of, or otherwise punish (hereinafter referred to as "unfair dismissal, etc.") an employee.
▣ Article 27 of the Labor Standards Act (Written Notice of Reasons for Dismissal, etc.)
(1) When an employer intends to dismiss an employee, the employer shall give written notice of the reasons for and timing of the dismissal.
(2) A dismissal of an employee takes effect only when it is given in writing pursuant to paragraph (1).
▣ Relevant Precedent
- See Supreme Court, Decision of February 9, 1993, 91 Da 36666, and others. |
2. Labor Standards Act Lawsuit, the Court's Determination
The District Court that heard this lawsuit under the Labor Standards Act ruled in the plaintiff's favor in the action seeking confirmation of the nullity of the dismissal, holding that "the dismissal is confirmed to be void."
The plaintiff returned the vehicle keys immediately on the day Chairman A made the recommendation to resign. Because there had been no prior consultation regarding whether the plaintiff would leave, and because the plaintiff appeared to have been preparing to perform work up to the very day of the dismissal, the court found that the plaintiff had not anticipated the recommended resignation at all.
Accordingly, because the employment contract between the plaintiff and the defendant was terminated by the defendant's unilateral manifestation of intent against the plaintiff's will, the court determined that this constituted a substantive dismissal.
As to the effect of the dismissal, the court determined as follows.
Under Article 27 of the Labor Standards Act, when an employer intends to dismiss an employee, the employer must give written notice of the reasons for and timing of the dismissal, and this applies equally where an employee on a trial-use* basis is dismissed.
*Trial use : trial employment for a fixed period, before formal hiring (permanent hiring), in order to assess an employee's suitability as a regular employee and whether to make a permanent appointment. (Unlike a "probation" period, which is a period set after formal hiring for the purpose of developing and training the employee's vocational skills, trial use takes place before formal hiring. Accordingly, in determining the justification for a dismissal, it is recognized more broadly than an ordinary dismissal.)
In hiring the plaintiff, the defendant set a three-month probationary period and provided that the contract could be terminated at any time before the probationary period ended. This is construed as having set a trial-use period, and the court held that, because the defendant did not give the written notice prescribed by the Labor Standards Act when dismissing the plaintiff, this dismissal is void.
3. Labor Standards Act Lawsuit, Daeryun's Strategy
We have analyzed a District Court judgment holding that, under the Labor Standards Act, a recommended resignation constitutes a substantive dismissal and is therefore void if no written notice is given.
If you have been subjected to an unfair dismissal, you may file an application for remedy with the Labor Relations Commission within three months from the date of the unfair dismissal. In such a case, the fact of having been unfairly dismissed must be asserted and proven by the employee, who should gather evidence to support it.
For this reason, proceeding with the help of a legal professional may be advisable.
The 🔗Labor and Industrial Accident Group of Daeryun Law Firm LLP comprises attorneys experienced in human resources and labor matters who have handled a range of advisory work, and it assists clients facing difficulties arising from unfair dismissal.
If you need assistance in this regard, you are welcome to contact Daeryun at any time.
