An employer can exercise the right to disciplinary action for an employee’s violation of service regulations to maintain order within the company, provided, however, that it is justified when the organization implements the action fairly as authorized by the collective agreement or rules of employment.
The employer shall observe the following basic principles for disciplinary action. First, a different application of disciplinary punishment shall not be given for the same violation of the same regulation. The previous disciplinary action precludes any following disciplinary actions. Second, disciplinary action cannot be taken retroactively. Once a considerable time has passed after an employer has become aware that an employee acted in a way that justifies disciplinary action, the employer can no longer take such action, as it would, in effect, be retroactive discipline. Third, the employee shall not be punished twice for the same violation. Fourth, an employer shall observe the disciplinary process described in the collective agreement and rules of employment to guarantee fair implementation of disciplinary action and to promote reasonable operation of the disciplinary system.
The employer exercises his right to take disciplinary action by punishing an employee who violates company regulations in order to maintain managerial order and promote productivity. The purpose of this disciplinary action is to prevent recurrence of identical violations and to restore company order. The employer’s authority to take disciplinary action is discretionary but shall be exercised within boundaries set by the Labor Standards Act. That is, “No employer shall dismiss, lay off, suspend, or transfer an employee, or reduce wages, or take other punitive measures against an employee without justifiable reasons” (Article 23 (1) of the LSA). Therefore, disciplinary action without justifiable reason is null and void, as it is an abuse of the employer’s right.
In cases where an application for remedy against unfair dismissal is submitted to the Labor Commission, judgment criteria for justifiable disciplinary action may be classified under the following three principles: 1) Whether there was a justifiable reason for disciplinary action, 2) Whether the severity of punishment was appropriate, and 3) Whether disciplinary process was observed. In judging the criteria for disciplinary action, there has been no dispute over the “reasons for disciplinary action,”but there has been a lot of dispute over “severity of punishment” and “disciplinary process.” I would like to look at some concrete guidelines and labor cases related to the three judgment criteria for disciplinary action.


I.        Reasons for Disciplinary Action

The employer shall clearly stipulate reasons for disciplinary action related to company service regulations in the rules of employment or other appropriate document, in order to implement disciplinary action. This regulation of disciplinary action shall satisfy the need for justifiable reason under the precondition that “the employer cannot discipline the employee without justifiable reason” from Article 23 (1) of the LSA.

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 duties, etc. However, such cases of job negligence are behavior commonly displayed by many employees in providing labor service. Therefore, they may be subject to a wage reduction or personnel evaluation, but not to 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 repeated 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, neglecting work, or frequently arriving late to work can account for a poor evaluation of work attitude. Poor work attitude cannot naturally be subject to 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 (in a month),” such stipulations shall not be null and void, even if they violate 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.371)
② In the rules of employment, if the company stipulates that exceeding a certain number of ’absences without notice’ as a justifiable reason for taking 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.372)
(2)        Poor performance (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 take action with 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, for disciplinary dismissal to be deemed justifiable, there needs to be justification in 1) reason for dismissal, 2) the severity of disciplinary action, and 3) disciplinary procedures. 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 performance by the particular employee. In order to dismiss employees with poor records, a company needs to maintain a detailed checklist to verify that it has provided sufficient opportunities to these employees for improvement and that the poor performance has been ongoing for a long period of time(refer to Table 1).373)

(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 codes, etc., which are matters concerning the freedom to private life. Disruption of company order disrupts team work in the company, thereby disturbing peace and order through behavior that negatively influences the company.
In general, company order is regulated in the rules of employment. Even if there is no specific regulation on 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.374)
(4)        Misrepresentation of educational background and career, concealment
and falsification of information in the resume, etc.
Misrepresentation of one’s past 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, etc.
① Where an employee is found to have falsified or concealed his education or experience, the company may have chosen not to hire him/her or may have chosen not to provide the same working conditions. This assumption justifies taking appropriate disciplinary dismissal actions.375)
② Even if an employee who conceals his/her low education background has no problem handling his/her work and even if he works diligently over a long period, the right for the company to take justifiable disciplinary dismissal action remains unchanged.376)
③ In the event where false education and career details in the resume is the result of a mistake or where such fallacy is trivial, under special circumstances such as inappropriateness based on social norms, to warrant a dismissal, the company may not have justifiable reason to take
dismissal action.377)
(5)        Use of violence against colleagues or superiors
In the rules of employment and the collective agreement, any violent behavior by an employee towards his colleagues or superiors is usually a reason for disciplinary dismissal. This is generally necessary to reflect tight disciplinary principles for the purpose of maintaining management order and shall not be deemed as a violation of the principles of the Labor Standards Act. However, where disciplinary dismissal is based on such reason of violence, the company shall consolidate various aspects of pre- and post-events including the motive and the rightness or wrongness, etc., of such misconduct so that its adoption of such disciplinary dismissal measures can be deemed as based on justifiable reason and not the result of an abuse of disciplinary rights.378)

2. Disobeying company directions
(1)        Disobeying orders regarding personnel movement, such as workplace, job, or company transfers
As an employer has power over personnel management, he/she may be quite free to redeploy his/her employees so long as it is necessary for business purposes. Nevertheless, he/she shall give a justifiable reason for any act of transferring an employee to another position. In order to determine whether an act of redeployment is justifiable or not, consideration shall be made about its necessity for business purposes, its implications on the employee's quality of life, comparability of the previous position and the new one, and compliance with the good-faith principle in the personnel transfer process.
① Since transferring employees is included in the employer’s original authority to manage the workforce, such a personnel management order shall be respected as one of the employer’s discretionary rights. This cannot be regarded as illegal except in cases where this violates the
Labor Standards Act or amounts to an abuse of this right. Whether such a personnel transfer amounts to an abuse of this right or not shall be estimated after comparing and considering the necessity of the transfer for operation of the business and financial disadvantage to the employee. If an employee’s financial disadvantage due to the personnel transfer is not unreasonable but is an “ordinary difficulty,” this personnel order shall be deemed a justifiable right in managing personnel, and not an abuse of that right.379)
Regarding justification for personnel transfer, whether the company has sincerely consulted with the employee concerned in advance or not can be one important factor in determining justifiable implementation of the personnel right. However, it is not an abuse of the employer’s personnel management rights if the only supporting reason is that the employer did not go through this procedure.380)
② If an employee is absent from work out of defiance of a personnel movement order, such as workplace transfer, job transfer or company transfer, the company may be justified in taking disciplinary dismissal action as such absence may be deemed absence without notice based on its employment policy or as disobedience to a reasonable order for which the company has discretionary right. Whether the reason for disciplinary dismissal is justifiable or not depends on whether the employer’s order for workplace transfer, job transfer, or company transfer is reasonable or not.381)
③ In the event a dismissed employee is reinstated to his job based on the court’s judgment of the dismissal as unfair or based on a relief order, advice, etc., from the Labor Commission, the company shall carry out the reinstatement of such dismissed employee to his previous job. While reinstating the employee, the employer shall consider any personnel arrangement already made during the time of dismissal until reinstatement, business necessity, and change of working environment, etc., so as to assign appropriate work to the reinstated employee. Even if the newly assigned job is somewhat different from the previous job, it shall be deemed to have reinstated him/her justifiably because this belongs to the realm of the employerv’s fundamental authority and right of management. However, if the employee resorts to actions such as resisting such reinstatement and rejecting the work for a long time, it becomes a reason for dismissal.382)
(2)        Violation of directions
Refusing to follow directions at work means the employee is neglecting company principles and risking industrial accidents by resisting necessary directions, disobeying them without legitimate reasons, or independently performing a duty that actually requires a superior’s permission.
① In the event the employer instructs the employee to perform extra work or work overtime in excess of contractual working hours agreed on between labor and management, and the standard working hours stipulated in the Labor Standards Act, but where such instructions are legitimate and
justifiable, it can be a reason for justifiable disciplinary dismissal if the employee refuses. Without such justification, it cannot be reason for disciplinary dismissal.383)
② In the event an employee who received disciplinary action is to submit a written explanation, if the employee rejects submitting such a written explanation as required by the disciplinary procedure, this can be deemed as disobedience to a justifiable instruction and may become a new reason for disciplinary action. However, such non-submission of a written explanation is a light violation, and if the employer chooses the most severe dismissal action from the other available types of disciplinary punishment for it, the employer may generally be deemed to have abused his/ her right to take disciplinary action, unless there is special reason for doing so.384)

3.        Delinquency in private life

(1)        Prohibition against concurrent employment
Most rules of employment prohibit concurrent employment. The employee shall obtain the company’s permission prior to becoming a director or employee at a different company or organization, and shall not be employed at an identical or similar type of company for a certain period of time after leaving the company.
An employee’s holding of another job with another company is a private matter and based on his individual ability. It is therefore unjustifiable to completely and comprehensively prohibit the holding of another job which does not interfere with corporate order or the provision of his labor service. Pursuant to this, where the holding of such other job poses a hindrance to the said employee’s provision of labor service to the company due to the length of time in the other job or the holding of a directorship position in a competitor company, such concurrent jobs may be prohibited, in which case disciplinary dismissal is possible.385)
(2)        Delinquency outside of business and criminal offenses (Delinquency
in private life)
When an employee’s delinquency outside of business affects reliability or human relations with other co-workers inside the company and disrupts labor relations, it can induce disciplinary action. However, such behavior and conduct are in the realm of the employee’s private life and, while it may account for social criticism, cannot be the sole cause of disciplinary action in principle. It can only be considered as necessitating disciplinary action when the offense infringes on company order.
The reason for an employer to have disciplinary rights is to maintain regulations and order within the legal framework necessary for smooth implementation of the company’s business activities. Therefore, an employee’s delinquency in private life can only be a reason for justifiable disciplinary dismissal if it is directly related to business activities or if it is likely to damage social evaluation of the company.386)
(3)        In the event an employee is convicted of a criminal offense
In the collective bargaining agreement or rules of employment, where reason for disciplinary dismissal includes “in the event the employee is convicted of a criminal offense,” the purpose for such inclusion is to recognize that such judgment of guilt may affect the company in the following ways: (1) the employee’s basic responsibility in providing labor service is not possible for a long time so the employer cannot accomplish the purpose of the labor contract; (2) the employer and the employee cannot expect to maintain normal labor relations due to loss of a trust, and this causes harm to the ability to maintain corporate order due to a loss of reliable relations or human relations with other employees inside the company; and (3) depending on the employee’s position and characteristics of the criminal act, the company may suffer significant damage to its reputation or trust, or there may be negative influence on its business transactions.387)

4. Labor union activities
(1)        Protection of the company’s right to maintain corporate order
① A labor union officer wore a vest decorated with union propaganda. Although the company warned him several times that he would be punished according to company regulations if he continued to wear the vest during working hours, he ignored the warnings. The company decided to discipline him by suspending him from office for two months. This was deemed as a fair labor practice.388)
② Although a behavior is partly related to union activities, if the disciplinary dismissal was for a reason stipulated clearly in the rules of employment, then the dismissal is not unfair.389)
③ Where the company dismissed an employee due to his anti-government agitation, promotion of distrust, lying on a resume, etc., if the company’s dismissal was not to retaliate for his union activities, but to take disciplinary measures against the harm to company order,
then this is not unfair labor practice.390)
④ Despite an employee’s status as a labor union officer, so long as there was no evidence that the company took disciplinary action on account of its dislike for the union, then the action cannot be said to be unfair labor practice.391)
⑤ If the disciplinary dismissal for an illegal industrial action and the employee’s contempt for the representative director was justifiable and not nominal, then it is not regarded as unfair labor practice.392)
⑥ Distribution of pamphlets during break time inside company facilities cannot be punished by disciplinary action unless it disturbs the employees or violates the company’s order.393)
(2)        Labor union activities
① In order for an employee’s behavior to be categorized as justifiable union activity the Supreme Court has held that the following requirements must be met: First, the behavior must be seen as an activity on behalf of the labor union or to obtain implied authority or approval for the labor union (Characteristic). Second, the behavior must be necessary to maintain and improve the employees’ working conditions and to enhance their economic and social status, and must assist in enforcing employee unity (Purpose). Third, the activity must be outside working hours, except for special provisions granting permission to the contrary in the rules of employment or collective agreement, or except for repeated labor practice or the employer’s consent (Time). Fourth, union activities inside the workplace shall follow the reasonable conditions based on the employer’s right to manage the

facility and the activities must not involve violence to persons or property (Method).394)
② If a union member does not follow the union’s opinion determined by the decision- making process of the labor union, or if the union member opposes or criticizes a labor union decision or policy, the behavior is considered voluntary and a purely personal activity, and is not considered union activity.395)
③ Running for a position as a union delegate is clearly engaging in union activity. Furthermore, applying to the Ministry of Employment and Labor for unpaid allowances such as bathing allowance and reserve army training allowance pursuant to the rules of employment shall be considered union behavior if the purpose is to improve the employees’ working conditions and enhance their economic and social status, which can be interpreted as behavior to obtain the implied authority or approval of the labor union. This is justifiable and permissible union activity.396)
④ Even though it is company policy to require the company’s prior approval or permission before distributing handouts, this requirement cannot prohibit every union activity including justifiable activity to maintain and improve working conditions. Whether such activity is justifiable shall not only be judged by the company’s position but also various other factors, such as the handout’s contents, number of pages, time and method of distribution, effect on the company or the work, etc.397)
⑤ Distribution of handouts during non-working recess hours is permissible even if the union member did not obtain prior permission, unless the distribution negatively affected other employees’ work, obstructed free use of their recess hours, or corrupted the company’s order concretely. Although the handout distributed by the union member is designed to promote working conditions, if its content creates extreme distrust or hatred toward management and endangers public morals by distorting or exaggerating conditions, the employer’s disciplinary dismissal is justifiable and such action is not unfair labor practice.398)
⑥ If some contents in the handout damages the character, honor, reputation, etc. of other employees or some parts of the contents stipulated in the document are falsified, exaggerated or distorted, then if the purpose of distributing the handout was not to infringe on other employees’ rights or interests, but to maintain and improve working conditions, to promote employee welfare and enhance their economic and social status, and if the content of the handout was true as a whole, the employee distributing a handout is a justifiable union activity.399)
⑦ A distributed handout contained contents slandering the company. The handout might cause hostile feelings against the company and was not handed out directly to the employees, but was spread over the employer’s plant in secret. Even though the time for distributing handouts is during the labor union’s delegate election campaign, this handout may bring concrete danger by infringing on the employer’s right to facility management and violate corporate order and so it is not justified.400)
⑧ The company stipulated in its rules of employment that handouts distributed inside the workplace shall obtain the employer’s prior approval, with the company able to take disciplinary action against employees who violate this stipulation. The stipulation cannot be invalidated just because it might violate the provision in the Constitution guaranteeing freedom of speech.401)
⑨ Although the labor dispute was resolved, the company’s operations returned to normal, and the union repeatedly urged the union member to come back to work, he did not return to his driving job for an extended period because he was still participating in labor union activities and seeking to disrupt company operations. If the company dismisses him for the above reason, this decision is hard to categorize as an unfair labor practice taken in retaliation for his union activities, such as participating in strikes occurring previously.402)
⑩ In cases where the labor union in a company with a day and night shift had to hold a general meeting to discuss the pros and cons of an industrial action, and informed the employer of the general meeting, although the general meeting was held during working hours, it is permissible union activity.403)
⑪ In case where, in the interest of pursuing better working conditions by instigating employees to go on illegal strikes, lashing out at company managers, and violating the employer's instructions to return to work, disciplinary dismissal according to the
prescribed process is legal and justifiable.404)
⑫ It is not justifiable for employees to use annual leave or monthly leave collectively
and they can face disciplinary action if found to be involved in collective bargaining.405)
⑬ After an employer and a labor union end collective bargaining on wages, some employees with complaints might continue to strike in spite of the employer’s directions to get back to work. In this case, it is justifiable for the company to open a disciplinary committee and dismiss the employees because of their long-term absence.406)
(3)        Labor union officer position and activity
① When an employee received a personnel order to change jobs or transfer to another department under the employer’s rightful authority, the employee was absent from work for over 20 days and disobeyed the personnel order, concluding that the company was retaliating against him for his demands for improved working conditions. Since the behavior was a severe violation, the termination of his labor contract was justifiable.407)
② A full-time labor union officer basically maintains labor relations with the employer, keeping his status as an employee, but is considered suspended from duty and exempt from his work obligation. On the other hand, as the employer implements training programs during working hours which the employees are obliged to attend, such occasion is like providing work for the company. If there is a special provision according to the collective agreement, it is difficult to treat participating in the training as wrong.408)
③ When a union member is absent because he was campaigning for election as a labor union delegate, this is not justifiable reason for absence from work and therefore is cause for dismissal by the company.409)


II.        Severity of Disciplinary Punishment

1. Principles
(1)        In regulating reasons for disciplinary action in the rules of employment, the company can stipulate various levels of disciplinary punishment for identical cases. The company can regulate standard types of disciplinary punishment for violations, but it can also stipulate heavier punishment according to the severity of the violations. For the most part, it is up to the company what disciplinary punishment they wish to give. However, this discretion requires a socially acceptable balance between the reasons for disciplinary action and the disciplinary punishment. In cases where the employer gives a very heavy punishment for a light violation, the disciplinary action becomes an abuse of the employer’s right and becomes null and void.410)
(2)        In cases where there are several violations of company regulations that the employee should be punished for, whether disciplinary dismissal is justifiable shall not only be determined by each individual violation. Instead, the employer shall include all violations when considering dismissal, and reach a decision based on whether the violations are serious enough to discontinue employment relations in terms of socially acceptable common sense.411)
(3)        In choosing a type of disciplinary punishment, the employer shall first review the employee’s previous attitude, performance results, and severity of the violations.412)
(4)        If there is an admitted reason for disciplinary punishment, the kind of disciplinary punishment the employer shall apply is at the employer’s discretion. If the employer determines disciplinary action according to appropriate criteria for the severity of disciplinary punishment, unless such criteria are unreasonable, and if such application was not inappropriately used to dismiss particular employees, such disciplinary action is legal, and does not violate the principle of balanced application.413)
(5)        Dismissal is justifiable only when the employee commits so serious a violation that the company cannot reasonably continue the employment relationship any longer. Whether the violation is a terminable offence shall be decided after considering all factors, such as the business target and characteristics, workplace conditions, the employee’s status and job responsibilities, the incident's motivation and context, possible danger of obstructing corporate order, and his/her previous work attitude.414)

2. Types of disciplinary action
(1)        Verbal warning
A warning is given to point out the employee's violation, to ask for self-correction, and to prevent any further violations. It is called a verbal warning, because it does not require a written explanation.
(2)        Written reprimand
A reprimand is a disciplinary action that involves scolding someone for a mistake. This method demands that the employee submit a written explanation and asks for self-correction. In some cases, additional consequences may follow the reprimand. Accordingly, a detailed explanation of the reprimand shall not necessarily be prescribed.

(3)        Wage reduction
If a wage reduction is allowed without limit, the employee may easily be taken advantage of. Thus, Article 95 of the Labor Standards Act regulates that the amount of reduced wage for each infraction shall not exceed 50% of one day's average wage of the relevant worker, with the total amount of reduction to not exceed one-tenth of the total amount of wages in one pay period.
However, if the employee arrives late or leaves early for personal reasons, wage reduction in this case is not a disciplinary measure but a matter of wage calculation.
(4)        Demotion
Demotion is a disciplinary action that lowers an employee’s position, rank, or salary
grade, significantly impacting their working conditions.
(5)        Suspension from office
This disciplinary action concerns suspending those employees who violate company regulations while retaining their status. Wages are also unpaid during the suspension period.
However, under extended suspensions, the employee cannot receive wages or to seek another job, and so the period shall be limited to 6 months.
(6)        Disciplinary dismissal
This is a disciplinary action to sever all labor relations with the employee whose violation is so severe that the company cannot expect managerial order without excluding him/her.

3. Related cases
(1)        An employer dismissed an employee for a minor violation, even though the employee had received awards several times. As this disciplinary action was the heaviest form of punishment, it went beyond the employer’s right to take disciplinary action.415)
(2)        An employer dismissed an employee for one incident of misbehavior. From all the options available, the employer chose what appeared to be the heaviest form of punishment. Furthermore, as this employee’s one incident of misbehavior was not judged to be a common sense reason to discontinue employment relations, the disciplinary dismissal was determined to be an abuse of the employer’s right to take disciplinary action, and was null and void.416)
(3)        After a transfer to another department, an employee did not show any improvement in attitude over a long period, despite receiving repeated warnings for negligence at work, so dismissal was justifiable. Since having been transferred to the business department, an employee’s intentionally negligent behavior at work became reason for disciplinary punishment under the company’s service regulations. Providing labor is the most fundamental obligation that an employee has, and his high position as a general manager would make him more likely to become a target for criticism. Although the company had warned him several times directly and indirectly, through transfer, reprimand, and employment without a specific job, etc. for his repeated negligence, he did not show any regret or improvement. His behavior infringed seriously enough on the need for reliability with the company that it decided to break the employment contract. In considering motives, causes, and process of the employee’s negligence, it was judged that dismissal of this employee was within the realm of the employer’s right to take disciplinary action. Accordingly, the Seoul District Court agreed with the National Labor Commission’s ruling that this dismissal was justifiable.417)


III.        Required Disciplinary Procedures

1. Importance of Disciplinary Procedures
Justifiable disciplinary action is estimated by whether the following three aspects are justifiable: reasons for discipline, severity of punishment, and disciplinary procedures. Of special note is that if the employer does not follow appropriate disciplinary procedures, the disciplinary action is null and void even though there is sufficient reason for disciplinary action and the severity of punishment is reasonable. Disciplinary procedures fall into two categories. The first is a written notice (of dismissal etc.): if the employer fails to issue a written notice of dismissal, any dismissal will be considered unfair even though there is justifiable reason for dismissal. Secondly, if a provision exists in the rules of employment or collective agreement stipulating disciplinary procedures, the employer shall observe these procedures to ensure disciplinary action is justifiable. If these procedures are not observed, disciplinary action cannot be considered in effect despite the justifiability of the reasons. However, if no regulations are stipulated in the rules of employment or collective agreement concerning disciplinary procedures such as opportunity for the employee to attend the disciplinary action hearing and represent his/ her own views, disciplinary action is considered to be in effect without disciplinary procedures. In this article, required disciplinary procedures will be clarified, using as reference related labor cases that Kangnam Labor Law Firm has represented.

2. Disciplinary process
(1)        Written notification of reasons for dismissal
An employer who wants to dismiss an employee shall give written notice as to the cause for dismissal and the date of dismissal. If the employer dismisses the employee without giving such written notification, the dismissal shall be rendered null and void (LSA Article 27).
(2)        Observation of disciplinary process
An employer shall observe the disciplinary process guidelines described in the collective agreement and rules of employment to guarantee fair implementation of the disciplinary action and to promote reasonable operation of the disciplinary system.
1) In cases where the disciplinary process has been regulated in the collective agreement, rules of employment, etc., the disciplinary process must be observed. If there is no procedural provision stipulated, disciplinary punishment may still be valid.418)
2) According to disciplinary regulations based on collective bargaining and the rules of employment, the company shall include the union chairman in the disciplinary action committee and shall give the employee in question opportunity to attend, state his/her opinion, and submit verification documents. However, if the company dismisses an employee without observing the disciplinary process guidelines, even if disciplinary punishment is justifiable, this dismissal is invalid because the company did not follow the disciplinary process.419)
3) The rules of employment stipulate that the employee in question shall be given an opportunity to express his/her opinions in the disciplinary process, which means that the company shall give the employee opportunity to attend and state his/her opinion at the disciplinary action committee. Therefore, the company shall inform the employee of the time and place of the disciplinary meeting so as to provide the employee ample time to prepare his/her statement and verification documents. When a specific disciplinary action committee met at 2pm on January 26, 2001 and concluded with disciplinary dismissal, the employee in question received notification of the disciplinary hearing by mail, just that day. This did not give the employee enough time to prepare his statements or verification documents, so such delayed notification is illegal.420)
4) The collective agreement includes guidelines for disciplinary dismissal if an employee is absent without permission or leaves early without permission. If a company dismisses an employee for these behaviors, without engaging in the decision-making process through a disciplinary action committee (thereby following the entire disciplinary process), disciplinary dismissal cannot be recognized as a valid course of action.421)

3. Case one: written notice422)
Located in Mokdong, Seoul, “G” Institute employed about 20 teachers, both native English and Korean, to teach elementary and middle school students. Intending to balance the number of native teachers with Korean teachers, the principal of the institute verbally notified two foreign teachers in the middle of August of their coming dismissal, due to being estimated as the teachers with the lowest skills. On August 27, these two teachers were dismissed. The employer then sent written notification of dismissal to the two teachers (hereinafter referred to as “the Employees”) by text message and regular mail. The Employees applied to the Seoul Labor Commission for remedy on November 24, 2010.
The Labor Commission held a judgment hearing and stated the following:
“Both parties have stated their claims in this dismissal case, and the main point is placed on justification for dismissal: whether or not the reasons, procedures, and severity of punishment are appropriate. In estimating the justification for dismissal in this case, Article 27 of the Labor Standards Act states this basic requirement: ‘If an employer intends to dismiss an employee, the employer shall notify the employee of the reasons for dismissal and the date of such dismissal in writing. Dismissal shall take effect only after written notification is given to the employee.’ The employer claimed that he sent the employees written notification of dismissal by regular mail, but since the employer could not verify this fact with evidence, it is hard to believe that the employer properly implemented the procedures of giving written notice for dismissal stipulated in Article 27 of the Labor Standards Act. Accordingly, these dismissals are unfair without having to review whether the reasons for dismissal are justifiable. This Labor Commission has concluded that the employer should pay each employee 9.5 million won, which is the amount that the employees were supposed to receive each month in lieu of reinstatement.” The employer claims that it would not be fair to give 20 million won as compensation, instead of a few hundred thousand won, on account of one missed document: written notification of dismissal. However, Article 27 of the Labor Standards Act clearly regulates that employers shall give written notification of dismissal, along with reasons for dismissal and effective date, before the dismissal takes effect. This means that written notification is an essential requirement for dismissal to be legally effective. This act is designed to make the employer seriously consider the effects dismissal has on employee security, and to clearly resolve labor issues such as unfair dismissal and unpaid severance pay.

4. Case two : labor case on disciplinary procedures423)
MiHang Transportation operated a taxi business in Yeosu, South Jeolla Province, with 40 employees. On September 6, 2006, two employees led a group of about 10 union members to the president’s office to protest, swore at the employer and threatened to disclose company corruption to the police.
The company called a disciplinary action committee hearing with four committee members appointed by the company according to the rules of employmentand determined disciplinary action for violation of employee responsibility: suspension for three months without pay. The National Labor Commission’s judgment was as follows:
“The reason for disciplinary action against the Employees was for cursing the employer in the process of protesting company decisions, which has been proven as actual fact after looking into voice recordings, related employee statements, and related video materials. However, even though reason exists for disciplinary action against the Employees, justification for disciplinary action requires legality in disciplinary procedures as well as reasons for disciplinary action. The employer claimed ‘disciplinary action was justifiable since the company formed a disciplinary action committee according to the rules of employment. The collective agreement was invalid as of May 1, 2005 due to cancellation by the employer on October 29, 2004. This means that rules related to composition of the disciplinary action committee are considered contractual parts of the collective agreement, not normative. Therefore, normal disciplinary procedures do not have to be followed in this case.’ However, according to Article 31(1) of the Labor Union Act, standards concerning working conditions and other matters concerning the treatment of employees as prescribed in the collective agreement are given normative effect. This normative portion would be transformed to working conditions of individual employees and remain effective in their labor contracts, even in cases where the current collective agreement has expired and a new collective agreement has not yet been concluded. These normative portions consist of matters concerning wages, various allowances, working hours, holidays, leave, kinds and benefits of industrial accident compensation, severance pay, service regulations, promotion, reward and punishment, and dismissal. Accordingly, regulations concerning the composition of a disciplinary committee shall be considered normative.” 424)
“If so, although disciplinary action against the Employees followedjustifiable procedures according to the collective agreement, the employer did not compose a disciplinary action committee of three persons representing labor and three representing management, as regulated by the collective agreement, at the time of punishing the employees concerned. Instead, the employer punished the Employees through a disciplinary action committee consisting of members selected onlyby the employer in accordance with the rules of employment. This disciplinary action therefore had procedural mistakes, is unfair, and lacking justification.”
In conclusion, despite having a justifiable reason for suspending the Employees without pay, this disciplinary action was judged as unfair because the employer did not observe disciplinary procedures. Upon judgment by the first Labor Commission, the company should have taken new disciplinary action according to legitimate disciplinary procedures, as this is possible. “In cases where a conclusion of unfair dismissal is reached due to a violation of disciplinary procedure, the employee is considered to have never been dismissed. The employer can then take new disciplinary action by following corrected disciplinary procedures, as this does not violate the principle of good-faith or of prohibition against double punishment.” 425)

5. Details of disciplinary procedures
(1)        General disciplinary procedures
In general, disciplinary procedures are implemented in the following order. However, if the company does not have any procedures in its regulations, these steps are not necessary.
1) Occurrence of reason for disciplinary action
2) Investigation of actual facts and obtaining of evidence
3) Approval from employer for disciplinary action
4) Directions from the employer to the chairman of the disciplinary action committee to take disciplinary action
5) Employee is informed of time and place of the disciplinary action hearing
6) Disciplinary action hearing held
7) Determination of disciplinary action
8) Employer notified of actions taken
9) Final decision on disciplinary action by the employer
10) Employee is informed of the final decision on disciplinary action.
(2)        Composition of disciplinary action committees
If the company has in its rules of employment or collective agreement that disciplinary action shall be taken through its disciplinary action committee, then this regulation shall be observed. In principle, this disciplinary action committee is composed of those appointed by the employer. However, in cases where the disciplinary action committee in the collective agreement is regulated to be composed of an equal number of representatives from the labor union and the company, or shall include the labor union chairman, this disciplinary procedure must be observed in order for disciplinary action to be justifiable.
(3)        Employee opportunity to represent own views
If, according to the collective agreement, the employee concerned is to be given an opportunity to state his/her own views or submit related evidence, this procedure shall be observed. In this case, the employer shall inform the employee of the hearing date, time, and place with considerable advance warning in the course of providing this opportunity to the employee concerned to represent his/her own views.
(4)        Articles requiring labor union consultation or consent
In cases where the collective agreement requires, the employer shall consult with or receive agreement from the labor union in advance concerning disciplinary decisions.