When an employer punishes an employee who violates company regulations, it is exercising its right to take disciplinary action to maintain managerial order and promote productivity. The purpose of this disciplinary action is to prevent recurrence of identical violations. 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 reason”(Article 23(1) of the Labor Standards Act). 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 for unfair dismissal is made at the Labor Relations 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 ③whether 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 significant dispute over severity of punishment and disciplinary process. The following are some concrete labor cases related to the three 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, before implementing disciplinary action. This regulation of disciplinary action shall satisfy the need for justifiable reason in Article 23(1) of the Labor Standards Act.
As long as disciplinary reasons and types of disciplinary action related are stipulated in the rules of employment, disciplinary action implemented accordingly is acceptable, unless it violates the good-faith principle or is an abuse of rights. If the employee’s misbehavior falls under the reasons for dismissal as stipulated by the rules of employment, dismissal according to the rules is justifiable.

1. Individual behaviors
① Misrepresenting experience; ② Being absent without permission; ③ Receiving a poor personal work evaluation; ④ Engaging in verbal/physical violence, or causing injury; ⑤ Interfering with business; ⑥ Neglecting to protect company secrets; ⑦ Embezzling, misappropriating, or diverting funds; ⑧ Engaging in sexual harassment at work; ⑨ Falsifying reports or documents; ⑩ Defaming character; ⑪ Disregarding rules; ⑫ Stealing company property; ⑬ Accepting or offering bribes; and ⑭ Using company facilities without permission.

2. Disobedience to company directions
① Refusing to be assigned to another workplace; ② Refusing a job transfer or transfer to another division or subsidiary; ③ Refusing to work overtime; ④ Refusing to submit a written apology; ⑤ Refusing to follow company directions.

3. Delinquency in private life
① Causing a traffic accident; ② Gambling; ③ Being arrested, detained and/or indicted for a criminal offense; ④ Committing a scandalous criminal offense.

4. Illegal group activities or union activities
① Engaging in union activities during working hours; ② Distributing or posting leaflets; ③ Wearing a union ribbon or armband; ④ Obstructing other employees from working; ⑤ Illegally occupying company facilities

Ⅱ. Severity of disciplinary action
1. The company can stipulate various levels of disciplinary action for identical cases in the rules of employment. It can also regulate standard types of disciplinary action for violations, and stronger punishment for more severe violations. For the most part, it is up to the company what disciplinary action they wish to take. However, this discretion requires a socially acceptable balance between the reasons for disciplinary action and the disciplinary punishment itself. In cases where the employer punishes very strongly for a light violation, the disciplinary action becomes an abuse of the employer’s right and becomes null and void.

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, but shall also include all violations together and decide whether the violations are serious enough to discontinue employment relations in terms of socially acceptable common sense.

3. In choosing a type of disciplinary punishment, an employer shall first review the employee’s previous attitude, performance results, and severity of the violations.

4. If there is an admitted reason for disciplinary punishment, the kind to be applied is at the employer’s discretion. If the employer determines reasonable disciplinary action according to reasonable criteria for severity, and if such application was not inappropriately used to dismiss particular employees, it shall be legal, and does not violate the principle of balanced application.
5. Dismissal is justifiable only when the employee committed so serious a violation that the company cannot 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, motivation for and context of the incident, potential risk to corporate order, and his/her previous work attitude.

Ⅲ. 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, the date of dismissal, etc. If the employer dismisses the employee without giving such written notification, the dismissal shall be rendered null and void(Article 27 of the LSA).

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 disciplinary action and promote rational 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.

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 documents supporting his/her views of the incident. 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.
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 to the disciplinary action committee. Therefore, the company shall inform the employee of the time and place of the disciplinary action committee meeting so as to provide the employee ample time to prepare his/her statement and documents supporting his/her views of the incident. When a specific disciplinary action committee met at 2pm on January 26, 2001 and concluded with disciplinary dismissal, the employee in question had received notification of the disciplinary hearing by mail just that day. This did not give the employee enough time to prepare his statements or documents supporting his views of the incident, so such delayed notification was deemed illegal.

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.

5) In cases where a Comments 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 the established disciplinary procedures, as this does not violate the principle of good-faith or of prohibition against double punishment.