II. Employer’s Obligation to Protect and Impact of Violations

The employment contract is a legal agreement entered into for a worker to offer work and for an employer to pay wages for that work. Here, the main obligations of workers is to provide work, and employers to pay wages in return. Workers must faithfully provide the work specified in the employment contract at a fixed time and place. If the worker fails to do so for reasons attributable to the worker, the employer may claim compensation for damages or terminate the employment contract (Article 390 of the Civil Act). Even if the employer fails to receive the worker's work, the entire wage must be paid for work already performed (Article 538 of the Civil Act). The Civil Act governs relations between equal parties and places clear responsibilities in the event of a breach of obligations. However, the Labor Standards Act imposes separate restrictions against violation of the main obligations between parties to ensure workers' right to life and so that employers pay wages promptly.
Employers are obligated to protect workers in accordance with the principle of good faith inherent in the employment contract. Typical examples are the duty to consider safety, the using employer's duty to dispatched workers, and the duty to prevent workplace and sexual harassment. Ha, Kaprae,「The Labor Standards Act」 33rd Ed., Joongang Economy, 2020, pp. 149-165.


1. Obligation to consider safety

Employers are obligated to take the necessary measures to prevent harm to life, body, and health while workers are providing labor in good faith in accordance with the employment contract. If the employer fails in these obligations, resulting in a worker being injured in some way, the employer shall be liable for neglect resulting in injury. Supreme Court ruling on Feb. 23, 1999: 97 da 12082.
Also, a using employer is responsible for the dispatch employees it uses as if the using employer was the original employer in the event of an accident.

(1) Case: A worker fell from a ladder while working and was injured. While the worker was working on the ladder, the employer had a safety obligation to take measures so that other workers would secure the ladder to the ground so that the worker would not slip off the ladder. The employer neglected to do so. Therefore, the employer must compensate the worker for injury. Since the worker neglected to take action him or herself to prevent an accident, the company's responsibility is limited to 70%. Chuncheon District Court ruling on Aug. 10, 2016: 2014 gadan 11050.


(2) Case: An accident occurred in which a worker was hit in the left eye by some bent rebar (resulting in blindness in that eye) during rebar removal work. The employer was obligated to conduct safety training and provide and require the wearing of safety equipment, but neglected to do so. Therefore, the company's liability is limited to 80% in calculating the amount of compensation that the company should pay. Daegu District Court ruling on Apr. 19, 2019: 2018 gadan 115280.



(3) Case: An industrial accident occurred that involved a worker who had signed an employment contract with a dispatching company but was working at the using employer’s workplace. On November 15, 2005 at 3:35 am, while removing debris from a plastic injection machine, the worker’s right arm and hand were crushed and lacerated. The worker demanded additional civil injury compensation from the using employer in 2010 after having received the treatment and disability compensation in lump sum form through the dispatch company's industrial accident insurance. The using employer claimed that there was no relationship between it and the dispatched worker, and the extinctive prescription for illegal activities had expired since 3 years had passed since the incident. In response, the Supreme Court stated in its ruling, “Although the using employer did not have any direct employment contract with the plaintiff, the using employer was able to control and manage the plaintiff's labor through a worker dispatch contract. This is regarded as an employer-worker relationship. Therefore, it is fair to say that the using employer is obligated to consider safety as if it were a using employer.” The employer's duty to protect was recognized as grounds for injury compensation (Article 390 of the Civil Act), with the extinctive prescription determined to be 5 years instead of 3 years. Supreme Court ruling on Nov. 28, 2013: 2011 da 60247.


2. Obligation to prevent workplace and sexual harassment

Employers must ensure a work life free from workplace and sexual harassment. In the event sexual harassment occurs in the workplace, the employer shall take action to prevent recurrence, as well as suitable disciplinary action towards the instigator of the sexual harassment. The employer shall endeavor to make relief efforts and prevent secondary damage to the victim. If the employer fails in this obligation, the employer shall be liable for damages due to illegal acts as well as criminal punishment for violating the Equal Treatment Act.

 Related case: A worker (the plaintiff) complained about sexual harassment in the workplace and asked for prompt and appropriate remedy. However, not only did the defendant (company) ignore the complaint, but they also took disciplinary and other unfavorable actions, such as a suspension from work, against the plaintiff. The company also took discriminatory and unfair disciplinary actions against fellow workers who helped the plaintiff, thereby preventing the plaintiff from receiving any help from friendly colleagues in the workplace and isolating her from other colleagues. As a result of the company's actions, the plaintiff received “secondary damage” in which he was exposed to negative reactions, negative public opinion, disadvantageous treatment, and mental anguish for complaining about sexual harassment in the workplace and “causing a problem.” The mental stress suffered by the plaintiff is believed to be considerable. In accordance with Article 756 of the Civil Act, the company shall compensate the plaintiff for mental injury incurred by its violation of Article 14 (2) Article 14 (Measures to Be Taken in case of Sexual Harassment at Work) (2) Upon receiving a report as prescribed in paragraph (1) or discovering an occurrence of sexual harassment in the workplace, the employer shall immediately conduct an investigation to confirm the facts. In such cases, the employer must ensure that the worker who has reportedly suffered from sexual harassment on the job or who has claimed that sexual harassment occurred (hereinafter referred to as the “employee victim etc.”) does not feel sexually humiliated during the investigation process.
of the Equal Employment Act and as an employer in violation of its duty to protect. Seoul High Court ruling on Apr. 20, 2018: 2017 na 2076631.

Workers are obligated to provide labor and employers are obligated to pay wages. These are the main obligations of parties to employment contracts. In addition, there are also secondary obligations according to the good-faith principle: workers are to protect confidentiality, be faithful, and comply with company rules. If any of these are violated, workers may be subject to dismissal or other forms of discipline. For their part, employers are obligated to provide safety for their workers and prevent workplace and sexual harassment. If these obligations are not carried out, employers shall be liable for damage and/or punishment for violating related labor laws.