Chpater 4. Remedy System of Dismissal
- 1. The Judgment Function of the Labor Relations Commission
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If an employer dismisses, lays off, suspends, or transfers a worker, or reduces wages, or takes other punitive actions against a worker without justifiable reason, the worker may apply to the Labor Relations Commission for remedy. In addition, any labor union whose rights have been infringed by unfair labor practices may also do so (Article 28 of the Labor Standards Act, Article 28 of the Union Act). As these labor disputes are dynamic, continuous, and collective, administrative agencies or courts cannot always be expected to handle them fairly, promptly, and reasonably, due to the inflexibility of bureaucracy and lack of experience of some agencies. The Labor Relations Commission is an independent administrative agency that has the authority and the ability to resolve labor disputes fairly, promptly, and in a way that is appropriate to the professional situation at hand. Lee, Byungtae, Labor Law (7th ed.), pp. 487.
Here, I would like to review the quasi-judicial functions within the Labor Relations Commission, its procedures and operations, and the outcome of its decisions
I. Organizational structure of the Labor Relations Commission and its judicial functions
The Labor Relations Commission has an organizational structure in response to local administration. The National Labor Relations Commission covers the entire country, while 13 district Labor Relations Commissions cover the capital, metropolitan cities and the provinces. The National Labor Relations Commission can approve, cancel, or change the decisions of district Labor Relations Commissions. The judicial arm of the Labor Relations Commission is composed of three public interest committee members (including a chairperson or one standing commissioner) and one worker and one employer committee member.
1. Procedures for the work of the The judicial arm of the Labor Relations Commission
The Labor Relations Commission reviews applications and admits, rejects or cancels labor cases, determines eligibility of the parties involved, investigates, conducts interviews and holds judgment hearings within 60 days after the initial application date.
(1) Applications for remedy
If an employer dismisses or treats a worker unfairly, the worker may apply to the Labor Relations Commission for remedy. This application for remedy shall be made within three months from the date on which the unfair dismissal and/or related actions took place (or from the date of termination in cases where such activities continue). The worker must apply for remedy with the Labor Relations Commission nearest his/her workplace regarding unfair dismissal or unfair labor practice.
(2) Investigation
The Labor Relations Commission shall, without delay, conduct necessary investigations and inquiry of the parties concerned, upon receipt of an application for remedy. The Labor Relations Commission shall ① designate an investigator responsible for the process of investigation, ② demand the applicant submit evidence of the reason(s) for the application, ③ deliver a copy of the application for remedy or statement of reasons to the employer, and give opportunity for rebuttal and associated evidence to explain the employer’s actions, and, ④ if necessary, order the parties, witnesses or other related persons to attend a hearing and give their testimonies. Further investigation will then be carried out as deemed necessary (Article 45 and 46 of the Implementation Rules of the LRC Act).
(3) Hearing
The Labor Relations Commission shall hold a hearing within 60 days from the date the application was received. This hearing is to review documented evidence both parties have submitted, and information gathered during investigation, and then decide whether unfair dismissal or unfair labor practice actually took place. The committee members (public-interest, worker and employer representative members) assigned to the case shall attend the hearing, have both parties verify their claims, and interview witnesses and other related persons. At the judgment hearing right after the hearing, the public interest committee members shall decide whether unfair dismissal or unfair labor practice took place. The worker and employer committee members may also interview the parties to the case and witnesses, and give their opinions before the public interest committee members give their decision during the judgment hearing.
1) Regarding decisions disadvantageous to certain personnel such as dismissal, the first burden of proof is on the employer to verify whether the worker committed a particular action, whether such action violated the rules of employment, and whether the disciplinary action, severity and suitability of punishment is justified. Regarding unfair labor practice, the first burden of proof is on the worker and the labor union to verify the employer's intention to commit the unfair labor practice, unfair treatment, and/or the existence of domination and interference. (Supreme Court ruling on Aug 14, 1992, 91da29811)
2) However, regarding an employer's statements of reasons for decisions disadvantageous to certain personnel such as dismissal, the burden of proof then falls on the worker to verify that he/she did not commit a particular action, that he/she did not violate the rules of employment, and/or that the punishment was too severe or unsuitable to the violation. Regarding unfair labor practices, the employer also has a burden of proof to verify that he/she did not intend to commit an unfair labor practice, or give disadvantageous treatment to the company personnel due to their union activities, or obstruct those union activities, or cause deterioration to the union organization. (Supreme Court ruling on Sep 10, 1996, 95nu16738)
(4) Settlement
Labor cases filed for remedy at the Labor Relations Commission are often resolved between the two parties peacefully before going to the judgment stage of the Commission’s activities. Such settlement not only helps to restore labor-management stability, but also aids implementation of the employer’s agreement more effectively than a remedy order from the Labor Relations Commission. The Labor Relations Commission can always recommend or arrange a draft of settlement for both parties in the process of investigation and interview. Once settlement is established, the statement of settlement is composed, which has the same effect as settlement decided by a court (Article 16-3 of the Labor Relations Commission Act).
(5) Judgment
The judgment hearing is for the purpose of determining whether unfair dismissal or unfair labor practice has occurred, and takes place after the hearing. The judgment hearing is held with all three public interest committee members, and resolutions pass with approval from at least two of the three committee members. The Labor Relations Commission issues an order for remedy to the employer when it is deemed that unfair dismissal or unfair labor practice has occurred, or cancels the application for remedy if it is deemed that they have not. The Labor Relations Commission shall deliver a letter of the verdict to the employer and workers concerned within 30 days of the date of judgment.
#1: Application for remedy regarding unfair dismissal (Order for Remedy)
1. The employer in this case shall agree that dismissal of the applicant on Month/Day/Year was an “unfair dismissal”.
2. The employer in this case shall reinstate the employee within 30 days from the day this adjudication statement is received and shall pay an amount not less than the amount of wages he/she would have received if he/she had worked during the period after he/she was dismissed.
#2: Application for remedy regarding unfair dismissal (Dismissal / Rejection)The application by the employee has been dismissed or rejected.
#3: Application for remedy regarding unfair dismissal (Order for Monetary Compensation)
1. The employer in this case shall agree that dismissal of the applicant on Month/Day /Year was an “unfair dismissal”.
2. The employer in this case shall pay an amount not less than the wages the applicant would have received if he/she had worked during the period after he/she was dismissed, in lieu of ordering his/her reinstatement within 00 days from the date this remedy order is received.
#4: Application for remedy regarding unfair labor practice (Order for Remedy)
1. The employer removing labor union notices on the bulletin board of the labor union office on Month/Day/Year is determined as an unfair labor practice: domination of or interference with labor union activities.
2. The employer in this case shall post a notice apologizing for the removal of the union notices without permission and shall post a notice on company bulletin boards that such actions will not be repeated.
#5: Application for remedy regarding unfair dismissal & unfair labor practice (Orders for Remedy)
1. The employee’s dismissal by the employer in this case on Month/Day/Year is determined as an “unfair dismissal” and the related discrimination as an “unfair labor practice”.
2. The employer in this case shall reinstate the employee immediately and shall pay an amount not less than the wages he/she would have received if he/she had worked during the period after he/she was dismissed.
3. The employer shall post a notice on company bulletin boards declaring that such dismissals will not happen again.
#6: Application for remedy regarding unfair dismissal & unfair labor practice (Orders for Remedy for Dismissal, but Rejection of Unfair Labor Practice application)
1. The employee’s dismissal by the employer in this case decided on Month/Day/Year is determined as an “unfair dismissal”.
2. The employer in this case shall reinstate the employee immediately and shall pay an amount not less than the wages he/she would have received if he/she had worked during the period after he/she was dismissed.
3. Other applications have been rejected.
#7: Application for remedy regarding unfair dismissal & unfair labor practice (All applications rejected) All applications that the employee and labor union submitted have been rejected.
(6) Monetary compensation system
The monetary compensation system was introduced so that workers not wishing to be reinstated can still receive remedy. Under the monetary compensation system, the Labor Relations Commission may order the employer to pay the worker an amount not less than the wages he/she would have received if he/she had worked during the period after he/she was dismissed, in lieu of ordering that the worker be reinstated. The amount equivalent to wages (or more) includes some additional compensation as well, which shall be determined by the Labor Relations Commission after considering such things as any worker fault, and degree of unfairness of the dismissal, etc. This monetary compensation system has contributed to worker rights by providing alternative methods for receiving remedy for unfair dismissals. However, in actual practice this monetary compensation system has been used on a limited basis because it permits a minimum compensation equal only to the wages the worker would have received during the period after dismissal. Accordingly, in order to promote the monetary compensation system, it would be reasonable to require compensation equal to the total salary during the period after dismissal, a certain amount of compensation for the trouble and inconvenience of taking action, and the costs related to the application for remedy.
II. Failure to comply with orders for remedy and procedures for appeal
1. Failure to comply with an order for remedy (Enforcement levy)
Employers are required to obey orders for remedy, and penalties are applied if they fail to do so (Article 111 of the Labor Standards Act, Article 89 of the Labor Union Act). However, this criminal punishment is valid after the remedy order is confirmed finally. If an employer, after receiving a remedy order from the Labor Relations Commission and a decision on reexamination concerning a remedy order from the National Labor Relations Commission, fails to comply with a remedy order by the compliance deadline, an enforcement levy in the amount not exceeding 20 million won shall be imposed on the employer. The Labor Relations Commission may impose an enforcement levy twice a year for two years from the date the initial order for remedy was issued, or until the order is complied with. If an order for remedy issued by the Labor Relations Commission is canceled in accordance with a decision rendered by the National Labor Relations Commission after reexamination or a confirmed court ruling, the Labor Relations Commission shall immediately stop imposing the enforcement levy and return any monies already paid, by virtue of its authority or at the request of the employer.
Controversy may arise when deciding "fulfillment" of the employer's remedy order if there are no criteria to determine "fulfillment" of the orders from the Labor Relations Commission. There will be disputes among parties and the Labor Relations Commission in understanding the conditions related to complete fulfillment. So, the purpose of pursuing complete fulfillment is to prevent these disputes, ensure the effectiveness of an order for remedy, and resolve labor disputes in the early stages (Article 79 of the Rules on the Labor Relations Commission).
1. Fulfillment of an order to reinstate the worker to his/her previous job is when the employee has been assigned the same position the employee had when he/she was dismissed, with the same kind of work duties, or when the employee has been assigned other work duties with his/her prior consent. However, if the same position or work is no longer available for unavoidable reasons, assigning a similar position or work duties to the employee can be regarded as fulfillment of the order for remedy.
2. Fulfillment of the duty to pay the amount equivalent to wages is when the total amount of wages that the worker would have received, up to the time of complete payment, is paid to the worker.
3. Fulfillment of an order for monetary compensation is when the amount stipulated in the written judgment is paid.
4. Fulfillment of other orders for remedy occurs when the items stated in the written judgment are implemented.
5. In cases where the parties agree to a settlement other than an order for remedy for unfair dismissal, fulfillment occurs when that settlement is implemented.
(2) Procedures for appeal
If an employer or worker is aggrieved by an order for remedy or decision to dismiss rendered by a Regional Labor Relations Commission, he/she may apply to the National Labor Relations Commission for reexamination within ten days of the date on which he/she received the notice of the order for remedy or decision to dismiss the application. The procedures for application to the National Labor Relations Commission are the same as the procedures for application to the Labor Relations Commission. An employer or worker may file a lawsuit in accordance with the Administrative Litigation Act against the decision made by the National Labor Relations Commission after the reexamination within fifteen days from the date on which he/she received the notice of decision on the reexamination. If an employer or worker is aggrieved by the decision of the National Labor Relations Commission and appeals to the Administrative Court, the National Labor Relations Commission becomes a defendant and the worker (the employer) becomes a defendant assistant participant. If no application for reexamination is made and no administrative lawsuit is filed within the periods listed above, the order for remedy, decision to dismiss or decision on reexamination shall be considered confirmed.
