If an employer dismisses, lays off, suspends, or transfers a worker, or reduces wage, or takes other punitive actions against a worker without justifiable reason, the worker may apply to the Labor Relations Commission for remedy. In addition, any labor union whose rights have been infringed by unfair labor practices may also do so (Article 28 of the Labor Standards Act, Article 28 of the Union Act). As these labor disputes are dynamic, continuous, and collective, administrative agencies or courts cannot always be expected to handle them fairly, promptly, and reasonably, due to the inflexibility of bureaucracy and lack of experience of some agencies. The Labor Relations Commission is an independent administrative agency that has the authority and the ability to resolve labor disputes fairly, promptly, and in a way that is appropriate to the professional situation at hand.235)
Here, I would like to review the quasi-judicial functions within the Labor Relations Commission.


Ⅰ. Organizational Structure of the Labor Relations Commission

The Labor Relations Commission has an organizational structure in response to local administration. The National Labor Relations Commission covers the entire country, while 13 district Labor Relations Commissions cover the capital, metropolitan cities and the provinces. The National Labor Relations Commission can approve, cancel, or change the decisions of district Labor Relations Commissions. The judicial arm of the Labor Relations Commission is composed of three public interest committee members(including a chairperson or one standing commissioner) and one worker and one employer committee member.

1. Procedures for the judicial functions

The Labor Relations Commission reviews applications and admits, rejects or cancels labor cases, determines eligibility of the parties involved, investigates, conducts interviews and holds judgment hearings within 60 days after the initial application date.

(1) Applications for remedy

If an employer dismisses or treats a worker unfairly, the worker may apply to the Labor Relations Commission for remedy. This application for remedy shall be made within three months from the date on which the unfair dismissal and/or related actions took place(or from the date of termination in cases where such activities continue). The worker must apply for remedy with the Labor Relations Commission nearest his/her workplace regarding unfair dismissal or unfair labor practice.

(2) Investigation

The Labor Relations Commission shall, without delay, conduct necessary investigations and inquiry of the parties concerned, upon receipt of an application for remedy. The Labor Relations Commission shall ① designate an investigator responsible for the process of investigation, ② demand the applicant submit evidence of the reason(s) for the application, ③ deliver a copy of the application for remedy or statement of reasons to the employer, and give opportunity for rebuttal and associated evidence to explain the employer’s actions, and, ④ if necessary, order the parties, witnesses or other related persons to attend a hearing and give their testimonies. Further investigation will then be carried out as deemed necessary.

(3) Hearing

The Labor Relations Commission shall hold a hearing within 60 days from the date the application was received. This hearing is to review documented evidence both parties have submitted, and information gathered during investigation, and then decide whether unfair dismissal or unfair labor practice actually took place. The committee members(public-interest, worker and employer representative members) assigned to the case shall attend the hearing, have both parties verify their claims, and interview witnesses and other related persons. At the judgment hearing right after the hearing, the public interest committee members shall decide whether unfair dismissal or unfair labor practice took place. The worker and employer committee members may also interview the parties to the case and witnesses, and give their opinions before the public interest committee members give their decision during the judgment hearing.




[Burden of Proof]

1) Regarding decisions disadvantageous to certain personnel such as dismissal, the first burden of proof is on the employer to verify whether the worker committed a particular action, whether such action violated the rules of employment, and whether the disciplinary action, severity and suitability of punishment is justified. Regarding unfair labor practice, the first burden of proof is on the worker and the labor union to verify the employer’s intention to commit the unfair labor practice, unfair treatment, and/or the existence of domination and interference.238)

2) However, regarding an employer’s statements of reasons for decisions disadvantageous to certain personnel such as dismissal, the burden of proof then falls on the worker to verify that he/she did not commit a particular action, that he/she did not violate the rules of employment, and/or that the punishment was too severe or unsuitable to the violation. Regarding unfair labor practices, the employer also has a burden of proof to verify that he/she did not intend to commit an unfair labor practice, or give disadvantageous treatment to the company personnel due to their union activities, or obstruct those union activities, or cause deterioration to the union organization.239)


(4) Settlement

Labor cases filed for remedy at the Labor Relations Commission are often resolved between the two parties peacefully before going to the judgment stage of the Commission’s activities. Such settlement not only helps to restore labor-management stability, but also aids implementation of the employer’s agreement more effectively than a remedy order from the Labor Relations Commission. The Labor Relations Commission can always recommend or arrange a draft of settlement for both parties in the process of investigation and interview. Once settlement is established, the statement of settlement is composed, which has the same effect as settlement decided by a court.

(5) Judgment

The judgment hearing is for the purpose of determining whether unfair dismissal or unfair labor practice has occurred, and takes place after the hearing. The judgment hearing is held with all three public interest committee members, and resolutions pass with approval from at least two of the three committee members. The Labor Relations Commission issues an order for remedy to the employer when it is deemed that unfair dismissal or unfair labor practice has occurred, or cancels the application for remedy if it is deemed that they have not. The Labor Relations Commission shall deliver a letter of the verdict to the employer and workers concerned within 30 days of the date of judgment.




(6) Details in orders for remedy

The Labor Commission, upon arrival of the application for remedy, shall carry out an investigation into factual aspects of the case and conduct an inquiry of the parties concerned and, based on the outcome of the investigation and the inquiry, may issue an order for a remedial action by the employer or decide to dismiss or return the application for remedy when the case is found not to be subject to unfair labor practice.

※ The application may be dismissed or returned in any of following cases:
- When the applicant union is not a union organization recognized under the Trade Union Act;
- When the filing is made after 3 months from occurrence of the alleged unfair labor practice;
- When it is clear that the action in question is not an act of unfair labor practice; or
- When the remedy is neither beneficial to the employee nor possible to achieve.


1) Dismissal cases

① Rehabilitation
If a new labor contract is drawn in the form of re-employment, it is violating the purpose of rehabilitation, so the employer shall reinstate the dismissed employee to his/her pre-dismissal position or equivalent position.
② Back pay(Retroactive pay)
The employer shall pay the amount of wage the employee could not receive during the dismissal period. However, if the employee has earned any income from post-employment, the amount of back pay shall be adjusted according to the income earned.

2) Conditional contract (Yellow-dog contract)
The contract shall be nullified.

3) Refusal of collective bargaining
Order for Initiation of collective bargaining or collective agreement shall be given.

4) Domination or interference
Remedy is almost impossible, but such behaviors shall be at least stopped or prevented from reoccurrence.


Ⅱ. Failure to Comply with Orders for Remedy and Procedures for Appeal

1. Failure to comply with an order for remedy (Enforcement levy)

Employers are required to obey orders for remedy, and penalties are applied if they fail to do so(Article 111 of the Labor Standards Act, Article 89 of the Trade Union Act). However, this criminal punishment is valid after the remedy order is confirmed finally. If an employer, after receiving a remedy order from the Labor Relations Commission and a decision on reexamination concerning a remedy order from the National Labor Relations Commission, fails to comply with a remedy order by the compliance deadline, an enforcement levy in the amount not exceeding 20 million won shall be imposed on the employer. The Labor Relations Commission may impose an enforcement levy twice a year for two years from the date the initial order for remedy was issued, or until the order is complied with. If an order for remedy issued by the Labor Relations Commission is canceled in accordance with a decision rendered by the National Labor Relations Commission after reexamination or a confirmed court ruling, the Labor Relations Commission shall immediately stop imposing the enforcement levy and return any monies already paid, by virtue of its authority or at the request of the employer.
Controversy may arise when deciding “fulfillment” of the employer’s remedy order if there are no criteria to determine “fulfillment” of the orders from the Labor Relations Commission. There will be disputes among parties and the Labor Relations Commission in understanding the conditions related to complete fulfillment. So, the purpose of pursuing complete fulfillment is to prevent these disputes, ensure the effectiveness of an order for remedy, and resolve labor disputes in the early stages(Article 79 of the Rules on the Labor Relations Commission).


1. Fulfillment of an order to reinstate the worker to his/her previous job is when the employee has been assigned the same position the employee had when he/she was dismissed, with the same kind of work duties, or when the employee has been assigned other work duties with his/her prior consent. However, if the same position or work is no longer available for unavoidable reasons, assigning a similar position or work duties to the employee can be regarded as fulfillment of the order for remedy.

2. Fulfillment of the duty to pay the amount equivalent to wage is when the total amount of wage that the worker would have received, up to the time of complete payment, is paid to the worker.

3. Fulfillment of an order for monetary compensation is when the amount stipulated in the written judgment is paid.

4. Fulfillment of other orders for remedy occurs when the items stated in the written judgment are implemented.

5. In cases where the parties agree to a settlement other than an order for remedy for unfair dismissal, fulfillment occurs when that settlement is implemented.


2. Procedures for appeal

If an employer or worker is aggrieved by an order for remedy or decision to dismiss rendered by a Regional Labor Relations Commission, he/she may apply to the National Labor Relations Commission for reexamination within ten days of the date on which he/she received the notice of the order for remedy or decision to dismiss the application. The procedures for application to the National Labor Relations Commission are the same as the procedures for application to the Labor Relations Commission. An employer or worker may file a lawsuit in accordance with the Administrative Litigation Act against the decision made by the National Labor Relations Commission after the reexamination within fifteen days from the date on which he/she received the notice of decision on the reexamination. If an employer or worker is aggrieved by the decision of the National Labor Relations Commission and appeals to the Administrative Court, the National Labor Relations Commission becomes a defendant and the worker(the employer) becomes a defendant assistant participant. If no application for reexamination is made and no administrative lawsuit is filed within the periods listed above, the order for remedy, decision to dismiss or decision on reexamination shall be considered confirmed.


3. Emergent implementation order

When an employer instigates an administrative suit to cancel a review decision, the relevant court may, upon its decision at the request of the National Labor Relations Commission, order the employer to perform all or part of the order of remedy proposed by the National Labor Relations Commission until the judgment of the court is received.
The emergent implementation order is designed to implement the order of remedy before the judicial ruling and to verify the effectiveness of the order of remedy. If the employer does not implement the order of remedy and instigate an administrative suit for cancellation, then the three rights of labor may be easily violated, thereby delaying a quick remedy.