CONTENTS
- 1. Administrative Litigation on Unfair Dismissal, the Detailed Circumstances
- - Administrative Litigation on Unfair Dismissal, the Relevant Statutes
- 2. Administrative Litigation on Unfair Dismissal, the Court's Determination
- 3. Administrative Litigation on Unfair Dismissal, Daeryun's Strategy
1. Administrative Litigation on Unfair Dismissal, the Detailed Circumstances
The plaintiff that filed this administrative litigation on unfair dismissal was Company A, a plastics manufacturer.
B, who had worked at Company A as an on-site supervisor for about one year, suddenly received a notice of dismissal.
B then filed an application for remedy against unfair dismissal, and the Regional Labor Relations Commission found that Company A had committed an unfair dismissal by violating the duty to give written notice under Article 27 of the Labor Standards Act.
Company A challenged this and applied for reexamination, but the National Labor Relations Commission also dismissed the application on the same ground.
Company A argued that “B had habitually insulted the company's representative in open places, such as the company's worksite and restaurants, by calling him ‘a so-and-so who cannot keep himself together around women,’ and had also routinely threatened and bullied other employees.”
It also asserted that “B's carelessness damaged a machine, causing the company property losses worth several million won,” and, claiming that the dismissal was justified, filed this administrative litigation seeking revocation of the reexamination ruling.
Administrative Litigation on Unfair Dismissal, the Relevant Statutes
Under the Labor Standards Act, an employer that intends to dismiss an employee must give written notice of the grounds for dismissal and the timing of dismissal.
The purpose of this requirement is to make the employer act with caution in dismissing an employee, to clarify the existence, timing, and grounds of the dismissal so that any subsequent dispute over it may be resolved appropriately and easily, and to enable the employee to respond properly to the dismissal. (Supreme Court, Decision of October 28, 2021, 2021 Du 45114)
(1) An employer that intends to dismiss an employee shall give written notice of the grounds for dismissal and the timing of dismissal. (2) A dismissal of an employee takes effect only when written notice is given pursuant to paragraph (1). (3) Where an employer has given advance notice of dismissal under Article 26 in writing, specifying the grounds for dismissal and the timing of dismissal, the notice under paragraph (1) shall be deemed to have been given. |
As in the case above, a dismissal carried out without written notice constitutes an unfair dismissal.
🔗Unfair dismissal refers to a case in which an employer dismisses an employee unfairly, without just cause.
This is expressly prohibited under the Labor Standards Act, and an employee who has been unfairly dismissed may file an application for remedy through the Labor Relations Commission under the Ministry of Employment and Labor within three months.
If a party is dissatisfied with the result received from the Labor Relations Commission, it may file an administrative litigation against the Commission. An administrative litigation on unfair dismissal proceeds through the following stages.
Filing of the Complaint > Service of the Answer > Pleading Date > Pronouncement of Judgment |
2. Administrative Litigation on Unfair Dismissal, the Court's Determination
The administrative court that heard this administrative litigation on unfair dismissal ruled against the plaintiff in the litigation seeking revocation of the reexamination ruling on the remedy against unfair dismissal that Company A had filed against the National Labor Relations Commission.
The court explained that “under Article 27 of the Labor Standards Act, in order for an employer to dismiss an employee, the grounds and timing of the dismissal must be given in writing for the dismissal to take effect,” and that “because Company A did not give B written notice at the time of dismissal, the Labor Relations Commission's finding of unfair dismissal is appropriate.”
The court further held that “apart from whether the dismissal was justified, the failure to perform the duty to give written notice is a clear violation of the Labor Standards Act.”
3. Administrative Litigation on Unfair Dismissal, Daeryun's Strategy
We analyzed the administrative court's judgment, which held that, even where an employee insulted the company's representative or caused it property damage, the dismissal amounts to an unfair dismissal if the employer failed to perform its duty to give written notice.
If you have been unfairly dismissed and intend to file an application for remedy or a lawsuit, it is important to gather evidence, such as the employment contract, the rules of employment, and wage regulations, to demonstrate that the dismissal was unfair.
It may also be advisable to obtain a legal assessment of whether the dismissal was unfair with the assistance of an attorney experienced in labor matters.
Daeryun Law Firm LLP operates a 🔗Labor and Industrial Accident Group and provides legal advice to employees seeking help in connection with an unfair dismissal.
If you intend to pursue an administrative litigation on unfair dismissal, you are welcome to request assistance from the 🔗labor attorneys at Daeryun, who have extensive experience in labor matters.
