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I was unfairly dismissed; can I file a lawsuit for nullity of dismissal?

Hello. While working at a small and medium-sized company for the fifth year, I recently received a sudden dismissal notice from the company on the ground of 'poor work performance.' I received the notice unilaterally, without any separate warning or disciplinary procedure, so I feel deeply wronged. I heard that I can file an application for remedy against unfair dismissal with the labor office, and people around me said that there is also a way to separately file a 'lawsuit for nullity of dismissal.' I would like to know how the two procedures differ and what outcome I can obtain by filing a lawsuit for nullity of dismissal.

lawsuit for nullity of dismissal

Answer to Related Inquiry

Author: 고병준

A lawsuit for nullity of dismissal is a lawsuit to deny the validity of a dismissal disposition unilaterally imposed by the employer and to have its nullity confirmed by the court.

In other words, it is a procedure in the form of a civil lawsuit that a worker files, where the employer's dismissal is unjust or was carried out without a justifiable reason, in order to claim reinstatement to the original position and payment of an amount equivalent to the wages for the dismissal period.

First, an application for remedy against unfair dismissal and a lawsuit for nullity of dismissal are different systems.

An application for remedy against unfair dismissal is a procedure for applying to the Labor Relations Commission for remedy under Article 28 of the Labor Standards Act, and it must be filed within three months from the date of dismissal.

On the other hand, a lawsuit for nullity of dismissal is a right-remedy procedure under civil law, and there is no special limitation on the filing period (however, it may be limited in the case of a violation of the principle of good faith), and it may be conducted in parallel with an application for remedy to the Labor Relations Commission or separately.

In addition, the burden of proof lies with the employer.

In other words, the employer must prove to the court that the dismissal was justified (such as managerial reasons, neglect of duty, or grounds for discipline), and the worker has no obligation to prove this.

If the court finds that there was no justifiable reason for the dismissal, the dismissal becomes null and void, and its effect is regarded as never having existed from the beginning.

However, a point to be careful about is that, where you have received severance pay or taken up a new job for a long period after the dismissal without raising any objection, the court may regard this as acknowledgment of the validity of the dismissal and dismiss the lawsuit in accordance with the principle of good faith (the principle of forfeiture).

Therefore, if you have been unfairly dismissed, it is advisable to consult with a legal expert without delay and pursue appropriate remedy procedures in parallel.