Comparison between the Labor Relations Commission and the Teachers’ Appeals Commission

I. Introduction
A foreign professor of a private university visited this Labor Law Firm for a consultation regarding his unfortunate employment case. This professor had had his employment contract renewed every year for the past 5 years, but this had not been done this past February. The university stated that his employment contract had expired, as he was a fixed-term employee. The professor thought that his employment contract would be renewed according to the university regulations, as he had better-than-average scores in the teacher evaluation. He took legal action by submitting to the Labor Relations Commission an application for remedy for unfair dismissal, but his claim was rejected. He visited me to apply for an appeal.
Reviewing the details of his case, it was determined that, as he had been an assistant professor, he should have taken his original application for remedy to the Teachers’ Appeals Commission instead of the Labor Relations Commission. This individual could have been protected from the unfair rejection if he had known of the procedures of the Teachers’ Appeals Commission. This was a very unfortunate situation.
In cases where an employee receives an unfair personnel disposition, he or she can find resolution by applying for remedy with the Labor Relations Commission. In 2015, the Labor Relations Commission handled 13,000 unfair dismissal cases, whereas in comparison, the Teachers’ Appeals Commission only disposed of 588, a relatively small number of cases, although the number is gradually increasing. Foreign professors, in particular, can be confused as to whether a claim should be made with the Teachers’ Appeals Commission, as they are fixed-term employees, but at the same time have the status of a teacher. The information below will enable the reader to understand the procedures of the Teachers’ Appeal Commission as they compare to the procedures for remedy with the Labor Relations Commission.

II. Comparison of Functions between the Labor Relations Commission & the Teachers’ Appeals Commission

1. Division of Scope
Individuals subject to applications for remedy with the Labor Relations Commission are employees working for a company that employs five or more employees. Provided, that government servants working for state or local governments, and teachers, are excluded. Those government servants and teachers to whom Korean labor laws do not apply can submit applications for remedy through the Appeals Commission. The State Administration has an Appeals Commission for public servants and the Teachers’ Appeals Commission for teachers, while local administrations have an Appeals Commission for local public servants. The legislative branch and judicial branch of the national government, the Constitutional Court, and the Central Election Management Commission all have their respective appeals commissions.
Teachers have rights of education, guarantee of status, and guarantee of freedom of speech, while at the same time they often have the duties of educating and conducting research and maintaining their professionalism as teachers, but are banned from political activities. Of particular interest, the system related to the guarantee of status is with the Teachers’ Appeals Commission, which deals with teachers’ disciplinary dispositions (such as expulsions, dismissals, suspensions from office, wage reductions, and written warnings), and disadvantageous dispositions (such as forced leaves, dismissals, and removal from one’s position), and this system can involve a kind of administrative trial.
Specifically, teachers are classified as kindergarten “directors and assistant directors” (Article 20 of the Early Childhood Education Act), teachers at elementary schools, middle schools, high schools, advanced technical high schools, and “principals and vice-principals” at special schools (Article 19 of the Elementary and Secondary Education Act), as well as those at universities, colleges, colleges of education, and “presidents, deans, professors, vice-professors, associate professors, assistant professors, and full-time instructors” at open schools (Article 14 of the Higher Education Act). Accordingly, employees engaged in a private school’s administrative work, and fixed-term employees, (Article 32 of the Public Educational Officials Act, Article 54-4) do not fall within the scope of the Teachers’ Appeals Act. Instead, they may apply for remedy with the Labor Relations Commission.

2. Legal Procedures of the Labor Relations Commission & the Teachers’ Appeals Commission

Item        Labor Relations Commission        Teachers’ Appeals Commission
Composition        ㅇRelated law: Labor Relations Commission Act.
ㅇOrganization: Under the Ministry of Employment & Labor, National Labor Relations Commission (1) and regional Labor Relations Commissions (12). The National Labor Relations Commission (NLRC) is located in Sejong City, while regional Labor Relations Commissions (LRC) are located in their respective regions.
ㅇPurpose: To provide judgments for rapid and equitable resolution of unfair dismissal claims, unfair labor practices, etc.
ㅇApplicable to: All employees to whom the Labor Standards Act (LSA) applies.
ㅇ Composition of judgment panel: 3 members representing the public interest, 1 member representing employee interests, and 1 member representing government interests.
ㅇTarget: Claims of unfair dismissal under Article 23 of the LSA; Claims of unfair labor practice: Article 81 of the Trade Union & Labor Relations Adjustment Act. Correction of discriminative treatment: Article 9 of the Fixed-term Employee Act.         ㅇRelated law: Special Act on the Improvement of Teachers’ Status.
(Related Enforcement Decree: Regulation Regarding the Teachers’ Appeals Commission).
ㅇOrganization: Under the Ministry of Education. There is one Teachers’ Appeals Commission in Sejong City.
ㅇPurpose: As a collegiate administrative agency, to provide a review and judgment equitably based upon related laws and judicial rulings for disciplinary actions and disadvantageous dispositions related to teachers.
ㅇApplicable to: Teachers working in national, public and private kindergartens, elementary schools, and universities.
ㅇComposition of judgment panel: 8 committee members, with a majority attending.
ㅇTarget:
-Disciplinary actions handled: expulsion, dismissal, suspension from office, and warning letters.
-Other disadvantageous actions handled: rejection of contract renewal, dismissal, removal of job title, and forced leave.
Application for remedy        -The employee shall apply for remedy for unfair dismissal or unfair labor practices, etc. within three months from the date on which such action took place (Article 28 of the LSA, Article 82 of the Trade Union and Labor Relations Adjustment Act).
-Jurisdiction: The Labor Relations Commission that is located in the district where such actions have occurred (Article 29 of the LRC Regulation).        The employee shall apply for remedy within 30 days from the date on which the action took place.
-If the employee has applied for remedy to the Teachers’ Appeals Commission regarding expulsion or dismissal, the school shall not appoint a successor until the Commission makes its final decision. Provided, appointment of a successor can be done after the applicable period for remedy claims has expired.
Receipt of applications        The adjudication committee is assembled when a remedy application is received.
-Composed of three representatives of the public interest to be in charge of adjudication.
-Appointment of an investigator.
-Request correction of any missing required items for remedy application.
-Add or change the purpose for applying.        When a remedy claim is received, the Commission official shall immediately appoint an investigator to be in charge.
-When it is determined that the remedy application is missing required information, a request for correction should be made within 7 days from the date on which the case was filed. If such required correction is minor, the Commission will correct it directly.
Providing and demanding written responses.         -The Commission sends the parties in charge of the presentation information to advise on preparing a statement of reason, response documents, and the judging procedures.
-The Commission will forward a copy of the remedy application and statement of reason, and request submission of response documents.        The Commission will, within 3 days, send a copy of the remedy application and request the written responses.
-The Commission will forward a copy of the remedy application and may request the submission of written responses.

Investigation & submission of evidence         The Commission requests the documents needed for the case, and if necessary, may request attendance of the parties concerned or witnesses. If necessary, the investigator may visit the workplace for investigation purposes.         Receives the statement of reasons and forwards copies of such documents within 20 days.
-Upon receipt of the written response from the school, one copy will be sent to the applicant. If necessary, the investigator may visit the workplace for investigation purposes.
Providing information on hearing dates        A hearing date is announced 7 days in advance.
-The hearing may be delayed for justifiable reason.        A hearing date is announced 7 days in advance.
-The hearing may be delayed for justifiable reason.
Hearings        The hearing panel will consist of three representatives of the public interest, one member representing the employee, and one member representing the employer.
-Meeting procedure: Confirm the case → Confirm the parties → Questions and statements → Decision.
-Persons wishing to attend the meeting must receive permission in advance.
-The chairperson can designate a witness and question him or her. In such cases, both parties will have equal opportunity to ask questions.        ㅇHearing of the appeal.
-Participants: the chairperson, commission members, commission official, investigator in charge, both parties and witnesses.
-Meeting procedure: Confirm the case → Confirm the parties → Questions and statements → Decision.
-Range of review: The commission cannot explore issues other than the remedy claim.
Decisions        A judgment hearing is held. Presentations are made to the three representatives of the public interest, who make decisions by majority vote.
-Results: Admission, rejection, cancellation, or settlement.
-Monetary compensation: Admission of unfair dismissal, and monetary compensation instead of reinstatement        -Method: The hearing requires attendance of two-thirds of the registered members, and is decided by the majority vote of the registered members in attendance.
-Deadline: The decision should be made within 60 days, with an additional 30 days allowed when necessary.
-Decisions: cancellation, dismissal, reduction of disciplinary action, Order of implementation, etc.
Sending
of decisions        Sending the decision: For remedy applications, the verdict shall require implementation of the order within 30 days.         The decision will be sent within 15 days.
-When the decision document is complete, it is sent to both parties.
Follow-up measures and appeals
        -Enforcement levy: If the employer has not complied with the decision of the Commission, an enforcement levy of up to 20 million won per person will be charged. Such levy may be charged twice per year, for up to two years. If the employer wins the case in the appeal commission or court, all levies previously paid will be refunded.
-An appeal may be entered within 10 days from the date on which the party received the decision.         -If the Commission’s decision cannot be admitted, the teacher or the private school can file an administrative litigation.
-Teachers working for a public school may file administrative litigation against the public school concerned. However, the public school cannot file a lawsuit but must comply with the decision.
-Administrative litigation should be filed within 90 days from the date of the decision.

3. Characteristics of the Teachers’ Appeals Commission
The Teachers’ Appeals Commission has many positive characteristics, as the system was designed to fit the needs of teachers as follows: ① The Commission cannot implement the worst of the original dispositions on the applicant (Article 16 of the Teachers’ Appeals Regulation). ② When the applicant receives a disposition of expulsion or dismissal, the school cannot assign a replacement until a decision is made (Article 9 of the Special Law for Teachers’ Status). ③ There is no fee for filing an appeal, and the decision on an appeal can be made much quicker than in civil litigation: within 60 days with a possible additional 30 days (Article 10 of the Special Act on Enhancement of Teachers’ Status). Accordingly, the Teachers’ Appeals Commission is the best system for practical remedies by considering the teachers’ guarantee of status, as in the aforementioned items.

III. Conclusion
The foreign professor recognized that the rejection by the Labor Relations Commission was not due to the particulars of his case, but due to the wrong commission being asked to handle the case. He also understood that any appeal to the National Labor Relations Commission would not be valid due to the different legal procedure. In his case, there were two options that he could pursue: file a civil litigation, or look for a new job after acquiring a D-10 (job-seeking) visa. In this instance, I suggested that he look for another job instead of filing a civil litigation due to the fact that it could be almost impossible for a foreigner to pursue such civil action due to the expenses and time required. It was disappointing to realize that this was the result simply because he did not know the proper legal protection procedures. Obviously, employees need to become familiar with their applicable legal protection in order to avoid losing their legal rights.