CONTENTS
- 1. Unfair Dismissal Litigation, What Were the Detailed Circumstances?
- - Unfair Dismissal Litigation, What Are the Relevant Statutes?
- 2. Unfair Dismissal Litigation, What Was the Court’s Determination?
- 3. Unfair Dismissal Litigation, Daeryun’s Strategy
1. Unfair Dismissal Litigation, What Were the Detailed Circumstances?
The plaintiff that filed the unfair dismissal lawsuit was Company A, an automobile parts design firm.
Mr. B, who applied for a position after seeing Company A’s job posting titled “Automobile-Related Documentation Work and Actual-Vehicle Data Inspection,” passed the document screening and the interview, and received a notice of acceptance three months later. Two months after that, he received notice to report to work.
One week before his first day, when Mr. B inquired by text message about the time and place to report, the response he received from Company A was that “we called one week after the notice of acceptance, but the call was being rejected, so we treated it as an indication that you had no intention to work.”
As it turned out, the contact had not been made properly because of an error in the phone number used by Company A’s human resources officer. Company A subsequently offered Mr. B employment, saying “a position has opened up in another department,” but Mr. B declined it.
Mr. B protested, saying, “I never set my phone to reject calls, and you should at least have left a text message.” The human resources officer acknowledged the error but, while avoiding a specific answer, said he would respond after discussing the matter.
In the end, Mr. B filed an application for remedy against unfair dismissal with the Regional Labor Relations Commission (a pre-litigation review before an administrative agency, comparable to an administrative appeal or agency review in common-law systems). Although Company A said it would hire him into the original department, Mr. B declined this and requested monetary compensation of about 7.4 million won, corresponding to reinstatement to the original position.
The Regional Labor Relations Commission granted the application, finding that “the cancellation of employment constitutes a dismissal and is unfair because it violated the obligation of written notice.” When the National Labor Relations Commission issued the same determination, Company A filed suit.
Company A argued that “because Mr. B did not receive the pre-employment orientation, an employment contract was not formed,” and that “because he declined the offer of employment in the originally intended department, this is not a dismissal.”
Unfair Dismissal Litigation, What Are the Relevant Statutes?
The act of confirming employment before the start date is called “provisional offer of employment.” If, after a final notice of acceptance and before the start date, a company unilaterally cancels the employment, this constitutes a dismissal.
Under Article 23 of the Labor Standards Act, a provisional offer of employment cannot be canceled without justifiable grounds, and Article 27 of the Labor Standards Act, which requires that cancellation of employment be notified in writing, must be complied with.
An unjustified cancellation of employment constitutes 🔗unfair dismissal, so the employer must pay wages from the original start date and must compensate the worker for the loss incurred by giving up other employment opportunities.
Labor Standards Act Article 23 (Restrictions on Dismissal, etc.) (1) An employer shall not, without justifiable grounds, dismiss, lay off, suspend, transfer, reduce the wages of, or otherwise discipline (hereinafter referred to as “unfair dismissal, etc.”) a worker.
Article 27 (Written Notice of Grounds for Dismissal, etc.) (1) To dismiss a worker, an employer shall notify the worker of the grounds for and the timing of the dismissal in writing. (2) A dismissal of a worker takes effect only when it is notified in writing pursuant to paragraph (1). (3) Where an employer has given advance notice of dismissal in writing pursuant to Article 26, specifying the grounds for and the timing of the dismissal, the notice under paragraph (1) shall be deemed to have been given. |
2. Unfair Dismissal Litigation, What Was the Court’s Determination?
The Administrative Court that heard the unfair dismissal lawsuit upheld the determination of the National Labor Relations Commission, finding that the notice of cancellation of employment constitutes a “dismissal.” The court took the view that the employment relationship was formed at the moment the notice of acceptance was given.
The court held that “Company A’s human resources officer, mistakenly believing that Mr. B had no intention to work, notified him in response to his inquiry about the reporting schedule that ‘a replacement worker had already been secured and that he could not work in the intended department,’ which amounts to a termination of the employment relationship based on Company A’s unilateral intent.”
The court further explained that Mr. B’s refusal of the offer of employment in another department cannot be regarded as an intent to resign, and that because the nature of the work in the two departments differed, the two could not be treated as equivalent.
3. Unfair Dismissal Litigation, Daeryun’s Strategy
We analyzed the Administrative Court’s judgment, which held that, in this unfair dismissal lawsuit, refusing employment just before the start date after a notice of acceptance constitutes unfair dismissal.
This judgment was a case in which it was recognized that canceling employment in a provisional offer of employment relationship amounts to a substantive dismissal.
If you have been subjected to unfair dismissal in a situation similar to the above, you may seek a remedy by consulting with an attorney experienced in such matters.
The 🔗Labor and Industrial Accident Group of Daeryun Law Firm LLP includes attorneys handling human resources and labor matters who have wide-ranging advisory experience and work to protect clients’ rights and interests. If you are facing related difficulties, you are welcome to request a legal consultation at any time.
