I. Introduction
Recently I received two questions regarding ordinary dismissal from two different companies for whom I have provided regular consultation. The first question was from a company engaged in unloading imported vehicles from a car carrying ship at a car dock. Around 8:20 pm on July 4th, 2015, while driving vehicles out of a ship and on to a parking lot, a car accident occurred in which the driver hit a structural support on the ship while turning a corner. The driver should have easily seen the supports as he had driven vehicles on such ships many times. This particular driver had had a visual impairment when he was hired on January 1st, 2009, but it was not serious enough at the time to disqualify him from employment. Since that time, he had had ten accidents including this most recent one, so the company asked him to go for an eye examination at a hospital designated by the company, and turn in the results. If the employee’s eye exam is poor enough that he would have been disqualified from being hired, can the company dismiss him so as to prevent further accidents and safeguard other employees?
The second question was from a company whose sales manager went missing after embezzling 400 million won in funds received by the company in return for products delivered to customer companies. This sales manager had large personal debts, and used the company money to pay them. So the company pressed charges against the employee after a search and investigation by the police. On July 15, 2015, the company requested this labor attorney for advice on how to handle this employee in terms of his embezzlement and long term absence.
Both companies in these cases should dismiss the relevant employees: one due to his disqualification from employment, the other for embezzlement and long-term absence for personal problems. Generally, companies describe procedures for disciplinary dismissal in their Rules of Employment, but hardly make mention of procedures for ordinary dismissal. Herein, I would like to explain the criteria for the concept of ordinary dismissal, types, and justification in related labor cases.

II. The Concept & Types of Ordinary Dismissal
1. The concept of ordinary dismissal
“Ordinary dismissal” refers to termination of the employment contract due to the non-performance of the employee’s obligation to provide labor service in accordance with the employment contract. Therefore, ordinary dismissal requires a reason attributable to the employee that the employee cannot provide work. “A reason attributable to the employee” means that the employee falls into the remarkable condition where the employee becomes mentally or physically disqualified from providing the work which is the employee’s main obligation according to the employment contract, and as a result, the employee cannot carry out his assigned work sufficiently in the workplace. That is, “the term ‘employment contract’ in the Labor Standards Act means a contract which is entered into in order for a worker to offer work and for an employer to pay wages for that work (Article 2 of the Labor Standards Act).” As the reason the employee cannot provide work according to the employment contract is attributable to the employee, the employer can terminate the employment contract on the grounds of the employee’s severe violation of the employment contract. This is referred to as ordinary dismissal.

2. Types of ordinary dismissal
In most cases, ordinary dismissal is a result of reasons attributable to the employee, but court rulings also place termination of an employment contract due to company bankruptcy or voluntary closure in the category of ordinary dismissal.
(1) Dismissal due to reasons attributable to the employee
1) In cases where the employee is not qualified for work, or lacks the necessary vocational skills
① In cases where the employee is unable to obtain a qualification certificate essential for work, or failed an examination required for appropriate work performance, or he is lacking the necessary professional knowledge or skills, this may be grounds for ordinary dismissal.
② If the employee’s work performance has been evaluated as very poor, the employer cannot dismiss the employee for that reason only. However, in cases where the employee’s work ability has been evaluated remarkably deficient in objective reviews, a dismissal may be determined as attributable to the employee.
③ In cases where the employee has a severe handicap after completing medical treatment for an occupational injury, if the employee cannot carry out or completes his previous assignments very poorly, the employer may be justified in dismissing the employee.
2) In cases where the employee is sick with an illness that makes it unreasonably difficult to provide work.
① In cases where a driver has become blind, or in cases where a cook has contracted an incurable infectious disease, dismissal is regarded as attributable to the employee.
② In cases where the employee was injured due to actions unrelated to work, and cannot work as normal for a considerable time even after taking leave of absence twice, dismissal may be justifiable.
3) In cases where potential exists for a company’s secrets to be leaked
In cases where an employee is in a position to know a company’s business secrets and has a close relationship, through marriage, with a competitor’s management, or the employee has a close relative or friendly relationship with a competitor company’s directors, dismissal may be acceptable to prevent the leakage of business secrets.
(2) Dismissal due to reasons attributable to the employer
① In cases where a bankruptcy administrator dismisses all employees after the declaration of bankruptcy, this dismissal is not managerial dismissal, but ordinary dismissal, and so the company does not need to follow the requirements in the Labor Standards Act as to the process for dismissal for managerial reasons.
② In cases where the employer has made every effort to resolve financial problems, and has concluded that closing the business is the most reasonable method, and closed the business and dismissed the employees, these dismissals are justifiable.
③ In cases where the employer has dismissed an employee because the work that was supposed to be carried out is no longer needed, this dismissal is not for managerial reasons, but is ordinary dismissal.
④ In cases where an employee was hired to work at a specific workplace, and the company’s license to use the specific workplace has expired, dismissal of that employee may be justifiable.

III. Reasons Necessary for Ordinary Dismissal
1. Ease of dismissal
In cases where the employee neglects his primary duty in the employment contract to provide work, or carries out his assigned duties insufficiently, the employer can notify the employee of termination of his employment contract. This ordinary dismissal serves to increase the number of reasons for terminating the employment contract and make flexibility in manpower management possible.
There are three types of dismissal: ordinary dismissal, disciplinary dismissal, and managerial dismissal. Here, disciplinary dismissal and managerial dismissal have strict requirements and procedures that must be followed for the dismissal to be determined justifiable.
Disciplinary dismissal requires the employer to follow the disciplinary procedures stipulated in the Collective Agreement or the Rules of Employment. If the employer does not do so, the dismissal becomes unfair even though the reason was serious enough to justify dismissal. In one case, the courts ruled, “The Collective Agreement, the Rules of Employment, and its related rules regu