I. Summary
Company “K” (hereinafter referred to as “the Company”) which runs a golf academy business, operates an indoor golf driving range in Kangnam, Seoul and a golf academy at a golf course in Cheonan. The foreign golf coach (hereinafter referred to as “the Employee”) had satisfactorily completed a two year employment contract from May 1st, 2007, and both the Employee and the Company renewed the employment contract for two more years from May 1st, 2009. The Employee worked three days per week at the Kangnam indoor golf driving range and three days per week at the Cheonan golf course.
The Employee and his girlfriend started living together in Seoul in July 2009. In August of 2009, the Company ordered the Employee to transfer to a new golf academy at Oak Valley golf resort near Wonju. Instead, the Employee consistently stated that he was willing to work three days in Seoul and three days at Oak Valley as the existing contract stated. However, the Company insisted that he work only at Oak Valley, warning him that if he would not transfer to the workplace at Oak Valley, the Company would terminate the employment contract. In the end, the Company verbally agreed on working conditions in which the Employee would work three days in Seoul and three days at Oak Valley, and the Employee started working according to this agreed-upon working schedule. However, unexpectedly, the Company hired another coach to replace the Employee in the middle of October and suggested to the Employee that he work part-time. When the Employee rejected this, the Company dismissed the Employee, informing him that his employment would conclude the last day of November.

II. The Company’s Claim
The Company renewed the employment contract in May 2009 because the Employee was very willing to move to the Oak Valley golf academy. In June 2009, the Company decided to close the indoor golf driving range in Kangnam, Seoul, at the same time as opening the golf academy in Oak Valley. Accordingly, the Company had requested that the Employee transfer to the golf academy at Oak Valley, but the Employee refused. The Company consequently hired a new golf coach as the Employee’s successor in October 2009 and assigned him to Oak Valley. Then, the Company suggested that the Employee voluntarily resign since he refused to transfer to Oak Valley. In the beginning, the Employee did not agree, but later said that he would resign since he could not move to Oak Valley and the company had already hired his successor. As he did not come to work after November 30th, 2009, the Employee was regarded to have resigned. The verbal promise that the Company made to let him work three days each in Seoul and Oak Valley was designed to provide some time for him to get a new job when he was terminated, and was not seen by the Company as a new working agreement. The Company did not dismiss him, he resigned voluntarily.

III. The Employee’s Claim
The Employee completed a two year employment contract with the Company, and after signing a new two year contract on May 1st, 2009, the Employee invited his fiancée from England to come to Korea to live with him in July 2009. Even though the Employee began teaching golf to VIPs at the Oak Valley golf academy, he could not work there every day since he had just married, so the Employee requested to work 3 days per week each in Seoul and Oak Valley. However, the Company responded that he would be dismissed if he could not work full-time at Oak Valley. In early October, the Employee and the Company agreed that he would work 3 days at Oak Valley and 3 days in Seoul, which the Employee did. However, despite this agreement, the Company hired a new golf coach to replace the Employee at Oak Valley, and urged the Employee to continue working part-time. When the Employee rejected this, the Company informed him verbally that he would be dismissed as of November 30th and should move out of the Company housing. On the evening of November 30th, 2009, the Employee visited this labor attorney and asked me to take his case.

IV. Estimating Justification for Dismissal in this Case and Settlement Reached with the Labor Commission’s Guidance

1. Estimating Justification for Dismissal in this Case
If an Employee resigns voluntarily, he/she cannot file an application for remedy for unfair dismissal. However, when there is a dispute in a case of dismissal between an employee and the employer, the Labor Commission shall estimate whether the termination of employment was the result of resignation or dismissal. If a labor case is determined to be a case of dismissal, the Labor Commission shall estimate whether the dismissal was justifiable or unjustifiable. Justifiable dismissal requires the following conditions: 1) misbehavior by an employee falls under the “reasons for disciplinary dismissal,” 2) the degree of violation is severe enough for dismissal to be accepted as socially appropriate, and additionally, 3) the employer observes the Company’s disciplinary procedures if stipulated by the Rules of Employment or the collective agreement. Also, Article 27 of the Labor Standards Act (Written Notification of Reasons for Dismissal) stipulates that if an employer intends to dismiss an employee, the employer shall notify the employee, in writing, of the reason(s) for dismissal and the date of termination. Submission of a written notice of dismissal is regarded as evidence that the disciplinary process has been implemented. Accordingly, dismissal is regarded as justifiable when there are justifiable reason(s) for disciplinary action, punishment is appropriate to the situation, and disciplinary process was followed.

2. Settlement Reached with the Labor Commission’s Guidance
The judgment hearing for remedy of this Employee’s unfair dismissal was held at Kyunggi Regional Labor Relations Commission on February 3rd, 2010. At the beginning of the hearing, the chairman of the Labor Commission suggested that the Employee accept a peaceful settlement with the employer and receive a cash payment as compensation instead of being reinstated. The Employee felt that the workplace where he would be reinstated would not be appropriate and expressed intention to accept the settlement. The Company also felt their statement that the Employee quit his job voluntarily would not likely be accepted by the Labor Commission. If this was judged as a dismissal case, the result would likely be disadvantageous to the Company because they did not follow required dismissal procedures. The Labor Commission suggested that the Company would be wise to accept a mutually agreed-upon settlement instead of receiving an unfavorable result. The Company and the Employee began negotiating a settlement. The Employee requested compensation for lost wages from the dismissal date to the time when he would get another job, but the Company responded that they would rather reinstate him than pay such a large compensation package.
During settlement negotiations, new points of dispute arose, among them whether severance pay should be added to any compensation to the Employee. The Company stated that it should be taken for granted that severance pay for a foreign golf coach was not applicable. The Company explained that they had not paid any severance pay to golf coaches so far, and that if the Company had to pay severance pay, they would have made employment contracts with severance pay already deducted from the annual salary. The Employee responded that because the Labor Standards Act applied to all employees, regardless of nationality or salary, the employer should pay severance pay to employees who serve one year or more in Korea.
As the settlement negotiations continued without a result