Recently company headquarters in Singapore ordered the integration of two departments in the Korean branch. As a result, one employee’s job has disappeared.
Because the company could not transfer the employee to another department, I suggested that the employee sign an “agreed resignation,” but the employee insists that he/she is being fired.
As far as I know, an agreed resignation is not a dismissal, but am I right? Is it possible that an agreed resignation can be considered a dismissal?
There are two ways to terminate employment: voluntary resignation and dismissal, the latter being a unilateral decision by the employer. Resignations do not result in labor disputes as the employee chooses to resign, whereas dismissals require a justifiable reason in accordance with Article 23 of the Labor Standards Act since they terminate the employment relationship without the employee’s consent.
Forced resignations are in the grey area between resignation and dismissal, and refer to cases where the employee does not wish to quit but must submit a letter of resignation at the employer’s insistence, whereupon the employer terminates the employment relationship. In this case, it would seem that there would be no labor dispute about whether this was a dismissal or not because the employer simply terminated the employment by accepting the letter of resignation submitted.
However, the court has ruled that in cases where an employee is forced by the employer to submit a resignation letter to the company, the resignation can be invalidated because it was not the employee’s actual intention to resign.
Therefore, if you want to proceed with an agreed resignation, you have to give the employee sufficient time to consider whether to resign and it would be better to negotiate with the worker. If the employer forces an employee to submit a resignation, the courts may deem it as unfair dismissal.