The employer shall clearly stipulate reasons for disciplinary action related to company service regulations in the rules of employment or other appropriate document, in order to implement disciplinary action. This regulation of disciplinary action shall satisfy the need for justifiable reason under the precondition that “the employer cannot discipline the employee without justifiable reason” from Article 23 (1) of the Labor Standards Act.

1. Individual behaviors

(1) Insincere work attitude such as absence without notice, etc.
Negligence in the rules of employment refers to poor work performance, insincere attendance, arriving late, leaving early, avoiding duties, etc. However, such cases of job negligence is behavior commonly displayed by many employees in providing labor service. Therefore, they may be subject to a wage reduction or personnel evaluation, but they not to disciplinary punishment.

Nevertheless, negligence of duty can induce disciplinary punishment in such cases where the employee is negligent without permission, or the employee's behavior disrupts company order regardless of reporting the cause in advance, or where the employee repeats the same mistakes after neglecting warnings from the company.

Poor work attitude indicates behavior that degrades work efficiency or reduces productivity due to lack of concentration on duty. Absences without permission, neglecting work, or frequently arriving late to work can account for a poor evaluation of work attitude. Repeated poor work attitude cannot naturally be subject to disciplinary action, but when the employee neglects or does not abide by warnings given by the company, he/she may be subject to disciplinary action.

① In the event the company regulates, for example in its rules of employment, insincere work attitude such as ‘absence without notice’ by stipulating its right to take disciplinary dismissal action “when ‘absent without notice’ exceeds a certain number of days (in a month),” such stipulations shall not be null and void, even if they violate the Labor Standards Act. Accordingly, if an employee is repeatedly absent from work without notice, the company has justifiable reason to take disciplinary dismissal actions against him. Supreme Court ruling on September 26, 1986, 89DaKa5475.


② In the rules of employment, if the company stipulates that exceeding a certain number of 'absences without notice' as a justifiable reason for taking disciplinary dismissal action, it does not indicate an accumulation of the total number of ‘absent days without notice’ without limit to a certain period of time. But it should be interpreted that there is a limit to an employee's total number of ‘absent days without notice’ within a given recognized fixed period. Supreme Court ruling on May 9, 1989, 88DaKa4277.


(2) Poor performance (low sales performance)
In every company there are employees who perform very well, and those who perform poorly. Companies pay incentives to good workers, while they take action with poor employees to ensure better performance in the future. In some instances, companies may dismiss poorly-performing employees, and in such cases, the labor laws have strict standards designed to protect employees. Generally, for disciplinary dismissal to be deemed justifiable, there needs to be justification in 1) reason for dismissal, 2) the severity of disciplinary action, and 3) disciplinary procedures. Justification for dismissing under-performing employees should be determined by considering not only the criteria required for normal disciplinary dismissal, but also occupational characteristics related to poor sales performance by the particular employee. In order to dismiss employees with poor sales records, a company needs to maintain a detailed checklist to verify that it has provided sufficient opportunities to these employees for improvement and that the poor sales have been ongoing for a long period of time (refer to Table 1). Koo Keunseo,「Justification for Dismissal of Poor Performers」 Labor Law Theory and Practice Association, Nov. 2011; Bang, Sangin,「Legal Issues Surrounding Poor Performers」, Monthly Labor Law Feb. 2010; Cho, Sanguk,「Management of Poor Performers」, Monthly Labor Law, Dec. 2012; Kim, Sunghee,「Dismissal of Poor Performers」, Gangwon Law Studies, Feb. 2012.

Checklist: Meeting Requirements for Justifiable Dismissal of Poor Performers


1. Are the criteria for determining poor performers objective and reasonable?
1) Objective criteria should be applied.
2) Poor performance should be sustained for a reasonable time.
3) Sales are not expected to show much improvement.
2. Is the evaluation of poor performers objective and impartial?
1) Objective and impartial evaluation must be used.
2) Multiple evaluators should be used to assess sales performance.
3) Absolute evaluation is preferable to relative evaluation.
3. Does the company endeavor to motivate poor performers to improve?
1) Sufficient advance warning must be given to the low performer.
2) A Performance Improvement Program (PIP) should be in operation.
3) Continuous improvement coaching and mentoring shall be provided.
4) Occupational support for poor performers shall be available.
4. Are there any guidelines regarding the dismissal of poor performers in the collective agreement or rules of employment?
1) Rules for handling poor performers should exist.
2) Sufficient explanation regarding the dismissal of poor performers should be provided.
3) Systematic procedures such as evaluation of sales performance, notification of evaluation results, and work expectations should be implemented.
5. Is the poor performance serious enough to deserve termination of employment according to social norms?
1) The poor performance must be serious enough to be accepted as such according to social norms.
2) The company must consider many factors, such as the company’s business situation, the employee’s working conditions, and past practices of disciplinary action.

(3) Disregard of rules
Failure to yield to company discipline signifies that the employee is disturbing the company's order, violating working rules with unacceptable behavior, violating dress codes, etc., which are matters concerning the freedom of private life. Disruption of company order disrupts team work in the company, thereby disturbing peace and order through behavior that brings negative influences to the company.

In general, company order is regulated in the rules of employment. Even if there is no specified regulation concerning it in the rules of employment, the employee shall have an additional duty bound by the labor contract, which is not to disturb the company's group activities. Supreme Court ruling on July 29, 1994, 94Da4295.


(4) Misrepresentation of educational background and career, concealment and falsification of information in the resume, etc.
Misrepresentation of one’s past career is deemed a justifiable reason for disciplinary punishment, not when it may distort the company's assessment of the employee's work abilities, character, trust, etc., but when it disturbs the structure of working conditions such as wage level and position due to past critical misrepresentation of career, or when the falsified information infringes upon the company's actual order and proves damaging to the employer.

Common examples include misrepresentation of educational achievement and jobs done, concealment of ideology or faith, concealment of imprisonment or disciplinary action data, etc.

① Where an employee is found to have falsified or concealed his education or experience, the company may have chosen not to hire him/her or may have chosen not to provide the same working conditions. This assumption justifies taking appropriate disciplinary dismissal actions. Supreme Court ruling on June 23, 2000, 98Da54940.


② Even if an employee who conceals his/her low education background has no problem handling his/her work and even if he works diligently over a long period, the right for the company to take justifiable disciplinary dismissal action remains unchanged. Supreme Court ruling on Mar. 14, 1989, 87DaKa3196.


③ In the event where false education and career details in the resume is the result of a mistake or where such fallacy is too trivial, under special circumstances such as inappropriateness based on social norms, to warrant a dismissal, the company may not have justifiable reason to take dismissal action. Supreme Court ruling on Mar. 26, 1993, 98Do4672.


(5) Use of violence against colleagues or superiors
In the rules of employment and the collective agreement, any violent behavior of an employee towards his colleagues or superiors is usually a reason for disciplinary dismissal. This is generally necessary to reflect tight disciplinary principles for the purpose of maintaining management order and shall not be deemed as a violation of the principles of the Labor Standards Act. However, where disciplinary dismissal is based on such reason of violence, the company shall consolidate various aspects of pre- and post-events including the motive and the rightness or wrongness, etc., of such misconduct so that its adoption of such disciplinary dismissal measures can be deemed as based on justifiable reason and not the result of an abuse of disciplinary rights. Supreme Court ruling on Mar. 13, 1992, 91Da39559.


2. Disobeying company directions

(1) Disobeying orders regarding personnel movement, such as workplace transfer, job transfer, or company transfer
As an employer has power over personnel management, he/she may be quite free to redeploy his/her employees so long as it is necessary for business purposes. Nevertheless, he/she shall give a justifiable reason for any act of transferring an employee to another position. In order to determine whether an act of redeployment is justifiable or not, consideration shall be made about its necessity for business purposes, its implications on the employee's quality of life, comparability of the previous position and the new one, and compliance with the good-faith principle in the personnel transfer process.

① Since transferring employees is included in the employer’s original authority to manage the workforce, such a personnel management order shall be respected as one of the employer’s discretionary rights. This cannot be regarded as illegal except for cases where this violates the Labor Standards Act or amounts to an abuse of this right. Whether such a personnel transfer amounts to an abuse of this right or not shall be estimated after comparing and considering the necessity of the transfer for operation of the business and financial disadvantage to the employee. If an employee’s financial disadvantage due to the personnel transfer is not unreasonable but is an “ordinary difficulty”, this personnel order shall be deemed a justifiable right in managing personnel, and not an abuse of that right. Supreme Court ruling on Oct. 11, 2007, 2007Do11566.


Regarding justification for personnel transfer, whether the company has sincerely consulted with the employee concerned in advance or not can be one important factor in determining justifiable implementation of the personnel right. However, it is not an abuse of the employer's personnel management rights if the only supporting reason is that the employer did not go through this procedure. Supreme Court ruling of October 13, 1995, 94da52928


② If an employee is absent from work out of defiance of a personnel movement order, such as workplace transfer, job transfer or company transfer, the company may be justified in taking disciplinary dismissal action as such absence may be deemed as absence without notice based on its employment policy or as disobedience to a reasonable order for which the company has discretionary right. Whether the reason for disciplinary dismissal is justifiable or not depends on whether the employer's order for workplace transfer, job transfer, or company transfer is reasonable or not. Supreme Court ruling on May 10, 1994, 93Da47667.


③ In the event a dismissed employee is reinstated to his job based on the court's judgment of the dismissal as unfair or based on a relief order, advice, etc., from the Labor Relations Commission, the company shall carry out the reinstatement of such dismissed employee to his previous job. While reinstating the employee, the employer shall consider any personnel arrangement already made during the time of dismissal till reinstatement, business necessity, and change of working environment, etc., so as to assign appropriate work to the reinstated employee. Even if the newly assigned job is somewhat different from the previous job, it shall be deemed to have reinstated him/her justifiably because this belongs to the realm of the employer's fundamental authority and right of management. However, if the employee resorts to actions such as resisting such reinstatement and rejecting the work for a long time, it becomes a reason for dismissal. Supreme Court ruling on July 29, 1994, 94Da4295.


(2) Violation of directions
Refusing to follow directions at work means the employee is neglecting company principles and risking industrial accidents by resisting necessary directions, disobeying them without legitimate reasons, or independently performing a duty that actually requires a superior's permission.

① In the event the employer instructs the employee to perform extra work or work overtime in excess of contractual working hours agreed on between labor and management, and the standard working hours stipulated in the Labor Standards Act, but where such instructions are legitimate and justifiable, it can be a reason for justifiable disciplinary dismissal if the employee refuses. Without such justification, it cannot be reason for disciplinary dismissal. Supreme Court ruling on Aug. 23, 1994, 93Nu21514.


② In the event an employee who received disciplinary action is to submit a written explanation, if the employee rejects submitting such a written explanation as required by the disciplinary procedure, this can be deemed as disobedience to a justifiable instruction and may become a new reason for disciplinary action. However, such non-submission of a written explanation is a light violation, and if the employer chooses the most severe dismissal action from the other available types of disciplinary punishment for it, the employer may generally be deemed to have abused his/her right to take disciplinary action, unless there is special reason for doing so. Supreme Court ruling on Dec. 24, 1991, 90Da12991.


3. Delinquency in private life
(1) Prohibition of double employment
Most rules of employment prohibit double employment. The employee shall obtain the company's permission prior to becoming a director or employee at a different company or organization, and shall not be employed at an identical or similar type of company for a certain period of time after leaving the company.

An employee's holding of another job with another company is a private matter and based on his individual ability. It is therefore unjustifiable to completely and comprehensively prohibit the holding of another job which does not interfere with corporate order or the provision of his labor service. Pursuant to this, where the holding of such other job poses a hindrance to the said employee's provision of labor service to the company due to the length of time in the other job or the holding of a directorship position in a competitor company, such double jobs may be prohibited, in which case disciplinary dismissal is possible. Supreme Court ruling on Dec. 13, 1994, 93Nu23275.


(2) Delinquency outside of business and criminal offenses (Delinquency in private life)
When an employee's delinquency outside of business affects mutual reliability or human relations with other co-workers inside the company and disrupts labor relations, it can induce disciplinary action. However, such behavior and conduct are in the realm of the employee's private life and, while it may account for social criticism, cannot be the sole cause of disciplinary action in principle. It can only be considered as necessitating disciplinary action when the offense infringes on company order.

The reason for an employer to have disciplinary rights is for the purpose of maintaining regulation and order within the legal framework necessary for smooth implementation of the company's business activities. Therefore, an employee's delinquency in private life can only be a reason for justifiable disciplinary dismissal if it is directly related to business activities or if it is likely to damage any social evaluation of the company. Supreme Court ruling on Dec. 13, 1994, 93Nu23275.


(3) In the event an employee is convicted of a criminal offense
In the collective bargaining agreement or rules of employment, where reason for disciplinary dismissal includes “in the event the employee is convicted of a criminal offense,” the purpose of such inclusion is to recognize that such judgment of guilt may affect the company in the following ways: (1) the employee's basic responsibility in providing labor service is not possible for a long time so the employer cannot accomplish the purpose of the labor contract; (2) the employer and the employee cannot expect to maintain normal labor relations due to loss of a trust, and this causes harm to the ability to maintain corporate order due to a loss of reliable relations or human relations with other employees inside the company; and (3) depending on the employee's position and characteristics of the criminal act, the company may suffer significant damage to its reputation or trust, or there may be negative influence on its business transactions. Supreme Court ruling on May 23, 1997, 97Da9239.


4. Labor union activities

(1) Protection of the company’s right to maintain corporate order
① A labor union officer wore a vest decorated with union propaganda. Although the company has warned him several times that he would be punished according to company regulations if he continues to wear the vest during working hours, he ignored the warnings. The company decided to discipline him by suspending him from office for two months. This was deemed as a fair labor practice. National Labor Relations Commission ruling on July 15, 2001: 2001buno32


② Although a behavior is partly related to union activities, if the disciplinary dismissal was for a reason stipulated clearly in the rules of employment, then the dismissal is not unfair. Supreme Court ruling on August 10, 1990: 89nu8217


③ Where the company dismissed an employee due to his anti-government agitation, promotion of distrust, lying on a resume, etc., if the company’s dismissal was not to retaliate for his union activities, but to take disciplinary measures against the harm to company order, then this is not unfair labor practice. National Labor Relations Commission ruling on February 18, 1991: 90buno251


④ Despite an employee’s status as a labor union officer, so long as there was no evidence that the company took disciplinary action on account of its dislike for the union, then the action cannot be said to be unfair labor practice. National Labor Relations Commission ruling on June 12, 2000: 2000buno35


⑤ If the disciplinary dismissal for an illegal industrial action and the employee’s contempt for the representative director was justifiable and not nominal, then it is not regarded as unfair labor practice. Administrative Court on October 5, 2000: 99gu35764


⑥ Distribution of pamphlets during break time inside company facilities cannot be punished by disciplinary action unless it disturbs the employees or violates the company's order. Supreme Court ruling on Nov. 12, 1991, 91Nu4146.

(2) Labor union activities
① In order for an employee’s behavior to be categorized as justifiable union activity the Supreme Court has held that the following requirements must be met: First, the behavior must be seen as an activity on behalf of the labor union or to obtain implied authority or approval for the labor union (Characteristic). Second, the behavior must be necessary to maintain and improve the employees’ working conditions and to enhance their economic and social status, and must assist in enforcing employee unity (Purpose). Third, the activity must be outside working hours, except for special provisions granting permission to the contrary in the rules of employment or collective agreement, or except for repeated labor practice or the employer’s consent (Time). Fourth, union activities inside the workplace shall follow the reasonable conditions based on the employer’s right to manage the facility and the activities must not involve violence to persons or property (Method). Supreme Court ruling on May 15, 1990, 90do357; April 10, 1992, 91do3044


② If a union member does not follow the union’s opinion determined by the decision-making process of the labor union, or if the union member opposes or criticizes a labor union decision or policy, the behavior is considered voluntary and a purely personal activity, and is not considered union activity. Supreme Court ruling on September 25, 1992, 92da18542


③ Running for a position as a union delegate is clearly engaging in union activity. Furthermore, applying to the Ministry of Labor for unpaid allowances such as bathing allowance and reserve army training allowance pursuant to the rules of employment shall be considered union behavior if the purpose is to improve the employees’ working conditions and enhance their economic and social status, which can be interpreted as behavior to obtain the implied authority or approval of the labor union. This is justifiable and permissible union activity. Supreme Court ruling on August 10, 1990, 89nu8217


④ Even though it is company policy to require the company’s prior approval or permission before distributing handouts, this requirement cannot prohibit every union activity including justifiable activity to maintain and improve working conditions. Whether such activity is justifiable shall not only be judged by the company’s position but also various other factors, such as the handout’s contents, number of pages, time and method of distribution, effect on the company or the work, etc. Supreme Court ruling on December 23, 1997, 96nu11778

⑤ Distribution of handouts during non-working recess hours is permissible even if the union member did not obtain prior permission, unless the distribution negatively affected other employees’ work, obstructed free use of their recess hours, or corrupted the company’s order concretely. Although the handout distributed by the union member is designed to promote working conditions, if its content creates extreme distrust or hatred toward management and endangers public morals by distorting or exaggerating conditions, the employer’s disciplinary dismissal is justifiable and such action is not unfair labor practice. Supreme Court ruling on February 9, 1993, 92da20880


⑥ If some contents in the handout damages the character, honor, reputation, etc. of other employees or some parts of the contents stipulated in the document are falsified, exaggerated or distorted, then if the purpose of distributing the handout was not to infringe on other employees’ rights or interests, but to maintain and improve working conditions, to promote employee welfare and enhance their economic and social status, and if the content of the handout was true as a whole, the employee distributing a handout is a justifiable union activity. Supreme Court ruling on May 22, 1998, 98da2365


⑦ A distributed handout contained contents slandering the company. The handout might cause hostile feelings against the company and was not handed out directly to the employees, but was spread over the employer’s plant in secret. Even though the time for distributing handouts is during the labor union’s delegate election campaign, this handout may bring concrete danger by infringing on the employer’s right to facility management and violate corporate order and so it is not justified. Supreme Court ruling on June 23, 1992, 92nu4253


⑧ The company stipulated in its rules of employment that handouts distributed inside the workplace shall obtain the employer’s prior approval, with the company able to take disciplinary action against employees who violate this stipulation. The stipulation cannot be invalidated just because it might violate the provision in the Constitution guaranteeing freedom of speech. Supreme Court ruling on September 30, 1994, 94da4042


⑨ Although the labor dispute was resolved, the company’s operations returned to normal, and the union repeatedly urged the union member to come back to work, he did not return to his driving job for an extended period because he was still participating in labor union activities and seeking to disrupt company operations. If the company dismisses him for the above reason, this decision is hard to categorize as an unfair labor practice taken to retaliate against his union activities, such as participating in strikes occurring previously. Supreme Court ruling on October 23, 1990, 89nu4666


⑩ In cases where the labor union in a company with a day and night shift had to hold a general meeting to discuss the pros and cons of an industrial action, and informed the employer of the general meeting, although the general meeting was held during working hours, it is permissible union activity. Supreme Court ruling on February 22, 1994, 93do613


⑪ In case where, in the interest of pursuing better working conditions by instigating employees to go on illegal strikes, lashing out at company managers, and violating the employer's instructions to return to work, disciplinary dismissal according to the prescribed process is legal and justifiable. Supreme Court ruling on Apr. 13, 1993, 92Na50580.


⑫ It is not justifiable for employees to use annual leave or monthly leave collectively and they can face disciplinary action if found to be involved in collective bargaining. Supreme Court ruling on Dec. 22, 1992, 92Da43272.


⑬ After an employer and a labor union end collective bargaining on wages, some employees with complaints might continue to strike in spite of the employer's directions to get back to work. In this case, it is justifiable for the company to open a disciplinary committee and dismiss the employees because of their long-term absence. Supreme Court ruling on Nov. 9, 1990, 90Nu3621.


(3) Labor union officer position and activity
① When the employee received a personnel order to change jobs or transfer to another department under the employer’s rightful authority, the employee was absent from work for over 20 days and disobeyed the personnel order, concluding that the company was retaliating against him for his demands for improved working conditions. Since the behavior was a severe violation, the termination of his labor contract was justifiable. National Labor Relations Commission ruling on Nov 16, 2016: 2016buhae956

② A full-time labor union officer basically maintains labor relations with the employer, keeping his status as an employee, but he is considered suspended from duty and exempt from his work obligation. On the other hand, as the employer implements training programs during working hours which the employees are obliged to attend, such occasion is like providing work for the company. If there is a special provision according to the Collective Agreement, it is difficult to treat participating in the training as wrong. Supreme Court ruling on November 23, 1999, 99da45246


③ When a union member is absent because he was campaigning for election as a labor union delegate, this is not justifiable reason for absence from work and therefore is cause for dismissal by the company. Supreme Court ruling on February 11, 1992, 91da5976