Labor and Industrial Safety 02Unfair Dismissal Claim (Employer)
Responding to an Unfair Dismissal Remedy Application (Employer)
This is the procedure on the company's side when an employee who was dismissed or disciplined (for example, suspended or given a pay cut) files an application for remedy for unfair dismissal with the Labor Relations Commission. It covers the investigation, hearing and decision of the Regional Labor Relations Commission, review by the National Labor Relations Commission, an administrative lawsuit (a lawsuit challenging the disposition in court), and compliance with a remedy order.It explains what the company must do at each step. The 10 days for review and the 15 days for a lawsuit are peremptory periods (periods that cannot be extended).So keeping track of the date you receive the written decision is the starting point.
Which step are you at?
Select your current step and the content for that step will appear below.
- 1Receipt of the worker's remedy application
- 2Designation of investigator and submission of written answer
- 3Notice of hearing schedule
- 4Witness application and postponement application
- 5Hearing
- 6Decision (remedy order or dismissal)
- 7Application for review to the National Labor Relations Commission
- 8Administrative lawsuit
- 9Compliance with the remedy order and non-compliance charge
Process flowchart
Click a box to see its explanation below.
- Basic step
- Additional action / option
- Rejection / objection
- End of procedure
Receipt of the worker's remedy application
Statutory period 3 months from the date of the unfair dismissal, etc.
Basis: Labor Standards Act §28, Labor Relations Commission Rules §40
If an employer unfairly dismisses, etc. a worker, the worker may apply to the Labor Relations Commission for remedy, and the application must be made within 3 months of the date of the unfair dismissal, etc. (§28). The starting date is, for a dismissal, the dismissal date stated in the dismissal notice (or the date of receipt, if earlier than the date the notice was received), and for discipline other than dismissal, the date the notice was received (or the date the worker learned of it, if there was no notice) (Labor Relations Commission Rules §40).
Next: Designation of investigator and submission of written answerExplanation
A worker who has been dismissed or disciplined can apply for remedy to the Regional Labor Relations Commission within 3 months of the date of the unfair dismissal, etc. For a dismissal, this is counted from the dismissal date stated in the dismissal notice (or the date of receipt, if that date is earlier than the date the notice was received), and for other discipline from the date the notice was received. For the company, the procedure starts when the Labor Relations Commission notifies it of the application.First compare the dismissal or disciplinary date with the application date to check whether the application was filed within 3 months. The application period and requirements are the first issue deciding whether the case goes on to a decision on the merits (a decision on whether the dismissal was justified).
- Time required
- The Regional Labor Relations Commission hearing is held within 60 days of the filing date, the written decision is sent within 30 days after the decision meeting, and it takes longer if you go on to review and an administrative lawsuit
- Cost
- No fee for a remedy application to the Labor Relations Commission (Government24 civil service guide); attorney and certified labor attorney fees are separate; stamp fees for an administrative lawsuit are separate; non-compliance charge of up to KRW 30 million if a remedy order is not followed
Procedure guide
Read from start to finish in order. Red text marks deadlines set by law.
- 1
The worker must apply for remedy within 3 months of the date of the unfair dismissal, etc., and for a dismissal this is counted from the dismissal date in the dismissal notice (or the date of receipt, if the notice was received after that date) (Labor Standards Act §28, Labor Relations Commission Rules §40). So the company first compares the dismissal or disciplinary date with the application date.
- 2
The Labor Relations Commission designates an investigator and requests submission of a written answer (Labor Relations Commission Rules §45). The written answer is the basic material for the company's position, so organize the grounds for dismissal and the disciplinary procedure with evidence. The submission deadline is not set as a number of days in the Rules; follow the date stated in the Commission's progress notice (National Labor Relations Commission guidance).
- 3
The hearing is held within 60 days of the filing date (extendable), and its schedule is notified by 7 days before the hearing date (Rules §51, §52(1)).
- 4
Applications for witnesses are due by 5 days before the hearing date (Rules §56(1)), and applications for postponement by 3 days before the hearing date (Rules §53(1)). Because deadlines are set, review them as soon as you receive the schedule notice.
- 5
At the hearing, the opportunity to submit evidence and to cross-examine is guaranteed (Labor Standards Act §29(3)). A settlement is possible until the decision, and a settlement record has the effect of a judicial settlement and cannot be reversed (Labor Relations Commission Act §16-3(5), Rules §71(2)).
- 6
The written decision arrives in writing within 30 days after the decision meeting (Rules §74(2)), and a remedy order states a compliance deadline set within 30 days (Rules §62(3)).
- 7
If you disagree with the initial decision, apply to the National Labor Relations Commission for review within 10 days of receiving notice (Labor Standards Act §31(1)). It is a peremptory period (Labor Relations Commission Act §26(3)), so if you miss it the decision becomes final (§31(3)).
- 8
If you disagree with the review decision, file an administrative lawsuit naming the Chair of the National Labor Relations Commission as defendant within 15 days of being served (§31(2), Labor Relations Commission Act §27(1)(3)). Filing a lawsuit does not suspend the effect of the remedy order (§32).
- 9
If you do not comply with the remedy order by the compliance deadline, a non-compliance charge of up to KRW 30 million may be imposed 2 times a year, based on the date of the first remedy order, for up to 2 years (§33(1)(5)). Failing to comply with a final remedy order is subject to imprisonment of up to 1 year or a fine of up to KRW 10 million (§111).
Current step
Deadlines to keep from now
- 3 monthsStep 1 Worker's remedy application
- Deadline in the progress noticeStep 2 Submission of written answer
- 60 days / 7 days beforeStep 3 Holding and notice of the hearing
- 5 days before / 3 days beforeStep 4 Witness and postponement applications
- 30 daysStep 6 Notice of written decision
- 10 daysStep 7 Application for review
- 15 daysStep 8 Administrative lawsuit
- Compliance deadlineStep 9 Compliance with the remedy order
Preparation and checks
- Check the date of the dismissal or disciplinary notice and the date of the remedy application, and gather materials on the grounds for dismissal and the disciplinary procedure. The application period and whether procedures were followed become the first issues.
- Check the submission deadline in the request for a written answer and prepare a written answer with evidence attached for each ground. It is the first material through which the commissioners learn the company's position.
- Decide on the witnesses you need and apply by 5 days before the hearing date. The deadline for witness applications is set in the Rules.
- If a settlement proposal comes, first decide internally on terms such as the amount, reinstatement and confidentiality. A settlement cannot be reversed once reached.
- Record the date you received the written decision and decide within 10 days whether to apply for review. It is a peremptory period and cannot be extended.
- Check the compliance deadline of the remedy order and consider how to comply even while challenging it. A challenge does not stop its effect.
When you need a lawyer
You need an attorney's help in cases like these: when you receive a remedy application and must prepare a written answer, or when there is a major dispute over the grounds for dismissal and the disciplinary procedure.
The same applies when you received a remedy order at the initial stage and the 10-day review deadline is running, or when you are considering an administrative lawsuit.
The written answer and evidence submitted at the Labor Relations Commission stage become the basic materials that carry through to the review and the lawsuit.
Also, the challenge deadlines are short, so if your decision is delayed you lose the chance to dispute.
Current position (9/9)
Step 9 · Compliance with the remedy order and non-compliance charge
What to do now
If you receive a remedy order, you must comply with its contents, such as reinstatement or payment of wages, by the compliance deadline. If you do not, the Labor Relations Commission imposes a non-compliance charge (a monetary burden to make you comply with the order) of up to KRW 30 million.
You are notified in writing by 30 days before the imposition and given an opportunity of 10 days or more to submit your opinion. The non-compliance charge (a monetary burden to make you comply with the order) can be repeated up to 2 times a year, based on the date of the first remedy order, for up to 2 years.
The worker can also inform the Labor Relations Commission of non-compliance within 15 days after the compliance deadline passes. The Commission also checks compliance without delay once the compliance deadline passes.
- Check the compliance deadline of the remedy order and consider how to comply even while challenging it. A challenge does not stop its effect.
What comes next
This is the last step.
Deadlines to keep from now
- Compliance deadlineStep 9 Compliance with the remedy order
Basis: Labor Standards Act §33, Labor Relations Commission Rules §77-§83
When to involve a lawyer
You need an attorney's help in cases like these: when you receive a remedy application and must prepare a written answer, or when there is a major dispute over the grounds for dismissal and the disciplinary procedure.
The same applies when you received a remedy order at the initial stage and the 10-day review deadline is running, or when you are considering an administrative lawsuit.
The written answer and evidence submitted at the Labor Relations Commission stage become the basic materials that carry through to the review and the lawsuit.
Also, the challenge deadlines are short, so if your decision is delayed you lose the chance to dispute.
Frequently asked questions
Practical questions that come up right away in this procedure.
- QBy when must we submit the written answer?
- The Labor Relations Commission Rules do not set the deadline for submitting the written answer as a number of days. According to the National Labor Relations Commission's guidance, the employer submits 2 copies each of the written answer and the evidence.The specific deadline is stated in the case progress notice sent by the Labor Relations Commission. When you receive the request or notice, check that date first.The hearing is required to be held within 60 days of the filing date. So start preparing as soon as you receive the request.
- QIf we file for review or sue, do we not have to comply with the remedy order?
- No. A remedy order (an order to correct the unfair dismissal) is not suspended by filing for review or filing an administrative lawsuit (a lawsuit challenging the disposition in court).After the compliance deadline passes, a non-compliance charge (a monetary burden to make you comply with the order) of up to KRW 30 million may be imposed. So you must consider the challenge and compliance together.
- QWhat effect does a settlement have?
- Once a settlement is reached, the settlement record has the same effect as a judicial settlement (a settlement made in court). It cannot be reversed once reached.That lets you end the dispute with certainty. But if the terms are set wrongly they cannot be undone, so check carefully before signing.
- QThe worker says they do not want to return to work. What happens?
- If the worker does not want reinstatement (returning to their original position), the Labor Relations Commission can order payment of money instead of reinstatement. The amount is at least the equivalent of the wages the worker could have received during the dismissal period.The compensation is calculated for the period from the dismissal date to the decision date. So organize wage records and the basis for calculation in advance.
- QCan we change the hearing date?
- If there is a ground set by the Rules, you can apply for a postponement by 3 days before the hearing date. Examples include a conflict with a general shareholders' meeting or a related court date, an overseas business trip, or an agreement between the parties. For grounds that could not be known in advance, such as serious medical treatment, arrest or detention, or a funeral period, you can apply up until the hearing.For other comparable grounds, the chair of the adjudication committee decides whether to approve. So submit materials proving the ground together.
When you need a lawyer
- The 10 days for applying for review and the 15 days for an administrative lawsuit are both peremptory periods (Labor Relations Commission Act §26(3), §27(3)). So you must record the date you received the written decision or review decision; if you miss the deadline, the decision becomes final (Labor Standards Act §31(3)).
- The defendant in the administrative lawsuit is not the worker but the Chair of the National Labor Relations Commission (Labor Relations Commission Act §27(1)). Name the defendant in the complaint as instructed in the appeal guidance in the review decision.
- The worker may inform the Labor Relations Commission of non-compliance within 15 days after the compliance deadline of the remedy order passes (Labor Standards Act §33(8)). So whether you complied may reach the Commission even if the company does not report it.
Related laws
- Labor Standards Act Article 23 (restrictions on dismissal, etc.), Article 28 (application for remedy), Article 29 (investigation), Article 30 (remedy order), Article 31 (review and administrative lawsuit), Article 32 (effect), Article 33 (non-compliance charge), Article 111 (penalties)
- Labor Relations Commission Act Article 16-3 (settlement), Article 26 (review), Article 27 (administrative lawsuit)
- Labor Relations Commission Rules Article 40, Article 45, Articles 51 to 57, Article 60, Article 62, Articles 64 to 66, Article 71, Article 72, Article 74, Articles 77 to 84, Article 90
Responding to an Unfair Dismissal Remedy Application (Employer),
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