LABOR LAW GUIDE

Chapter 6 Dismissals

Section 2 Reasons for Disciplinary Action

1. Individual behaviors

(1) Insincere work attitude such as absence without notice, etc.
Negligence in the Rules of Employment refers to poor work performance, insincere attendance, arriving late, leaving early, avoiding duty, etc. However, such cases of job negligence is behavior commonly displayed by many employees in providing labor service. Therefore, they may be subject to a wage reduction or personnel evaluation, but they are not liable for disciplinary punishment.
Nevertheless, negligence of duty can induce disciplinary punishment in such cases where the employee is negligent without permission, or the employee's behavior disrupts company order regardless of reporting the cause in advance, or where the employee repeats the same mistakes after neglecting warnings from the company.
Poor work attitude indicates behavior that degrades work efficiency or reduces productivity due to lack of concentration on duty. Absences without permission, work negligence, or frequently arriving late to work can account for evaluating work attitude. Repeated poor work attitude cannot naturally be subject for disciplinary action, but when the employee neglects or does not abide by warnings given by the company, he/she may be subject to disciplinary action.
① In the event the company regulates, for example in its rules of employment, insincere work attitude such as ‘absence without notice’ by stipulating its right to take disciplinary dismissal action “when ‘absent without notice’ exceeds a certain number of days(a number of days in a month),” such stipulations in the work regulation shall not be null and void, even if it violates the Labor Standards Act. Accordingly, if an employee is repeatedly absent from work without notice, the company has justifiable reason to take disciplinary dismissal actions against him.223)
② In the rules of employment, if the company stipulates that exceeding a certain number of days of 'absence without notice' as a justifiable reason for taking a disciplinary dismissal action, it does not indicate an accumulation of the total number of ‘absent days without notice’ without limit to a certain period of time. But it should be interpreted that there is a limit to an employee's total number of ‘absent days without notice’ within a given recognized fixed period.224)

(2) Poor Performer (Low Sales Performance)
In every company there are employees who perform very well, and those who perform poorly. Companies pay incentives to good workers, while they apply disciplinary measures to poor employees to ensure better performance in the future. In some instances companies may dismiss poorly-performing employees, and in such cases, the labor laws have strict standards designed to protect employees. Generally, disciplinary dismissal requires justifications in 1) reason for dismissal, 2) the severity of disciplinary actions, and 3) disciplinary procedures in order to be justifiable dismissal. Justification for dismissing under-performing employees should be determined by considering not only the criteria required for normal disciplinary dismissal, but also occupational characteristics related to poor sales performance by the particular employee. In order to dismiss employees with poor sales records, a company needs to maintain a detailed checklist to verify that it has provided sufficient opportunities for improvement to these employees and that the poor sales have been ongoing for a long period of time (refer to Table 1).

Checklist: Meeting Requirements for Justifiable Dismissal of Poor Performers225)


(3) Disregard of rules
Failure to yield to company discipline signifies that the employee is disturbing the company's order, violating working rules with unacceptable behavior, violating dress code, etc., which are matters concerning the freedom of private life. Disruption of company order disrupts team work in the company, thereby disturbing peace and order through behavior that brings negative influences to the company.
In general, company order is regulated in the Rules of Employment. Even if there is no specified regulation concerning it in the Rules of Employment, the employee shall have an additional duty bound by the labor contract, which is not to disturb the company's group activities.226)

(4) Violation of secret preservation
The employee has an additional duty from the labor contract that obliges him/her to preserve transactional secrets obtained during labor service and not to disclose company secrets to a third party or abuse that confidentiality.

(5) Use of company facilities without permission
A company's right of facility management is the right to use materials originating from ownership. Namely, an employer as the owner of the property has a right to manage the facilities for his/her own purposes. If an employee uses the company's facilities without permission, breaks their functions, or interferes with their operations, he/she may be liable for disciplinary punishment for violating the employer's right of facility management.

(6) Interference of business
It is recognized as an interference of duty when an employee interferes with the employer's business without a justifiable reason, obstructs other employees' execution of duty, distorts information, or obstructs operations. One may be sentenced to a maximum of five years' imprisonment or be fined up to 15 million won under Article314 of the Criminal Act.

(7) Embezzlement, misappropriation and bribes
An employee's embezzlement or misappropriation of company funds is detrimental to the company. Accordingly, the employee is subject to disciplinary punishment if he/she is in a position requiring financial trust and commits related crimes or misappropriates company property by taking advantage of a proxy right on the business, regardless of the amount considered.
If bribes degrade the company's reputation and dignity of the workers, and harm the company's honor and trustworthiness, then disciplinary action may be taken.

(8) Theft or running away with company possessions
Theft of company property is an insidious behavior of an anti-social nature and is cause for heavy disciplinary punishment. Running away with company possessions without permission also accounts for disciplinary action as a punishment for damaging the company.

(9) Defamation of character
When an employer's reputation is slandered on account of an employee's immoral or illegal conduct, in addition to warning the employee, the employer can also take disciplinary actions.

(10) Misrepresentation of educational background and career, concealment and falsification of information in the resume, etc.
Misrepresentation of ones past’s career is deemed a justifiable reason for disciplinary punishment, not when it may distort the company's assessment of the employee's work abilities, character, trust, etc, but when it disturbs the structure of working conditions such as wage level and position due to past critical misrepresentation of career, or when the falsified information infringes upon the company's actual order and proves damaging to the employer.
Common examples include misrepresentation of educational achievement and jobs done, concealment of ideology or faith, concealment of imprisonment or disciplinary action data, concealment of full-time labor union's key officials, etc.
① Where an employee is found to have falsified or concealed his education and experience, the company might choose not to hire him/her(if discovered at the point of recruitment) or might choose not to provide the same working conditions(if discovered either at the point of recruitment or during the course of his/her service to the company). This assumption justifies taking appropriat

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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