When it comes to unfair dismissal cases, workers claim that they were dismissed unfairly, while employers argue that the workers resigned voluntarily and therefore the dismissal was not unfair. If a worker resigns or reaches a mutual agreement with the employer, reflecting the worker's intention, the employment relationship is terminated, and it does not fall under the category of unfair dismissal. However, if the employer unilaterally terminates the employment relationship against the worker's will, it is considered a forced termination under Article 23 of the Labor Standards Act, and the worker can dispute it as an unfair dismissal.
In unfair dismissal cases, the burden of proof and the circumstances at the time are considered comprehensively by the Labor Committee. If a company hires a worker, it cannot dismiss them without justifiable reasons. If an unfair dismissal is found, the company is obliged to reinstate the worker and pay them for the period of dismissal. Even if there are legitimate reasons for dismissal, the employer must specify the reasons and timing in writing and provide them to the worker.
Unless the employment period is less than three months or the worker has committed a serious offense such as embezzlement or tampering with attendance records, the employer must give 30 days' notice before dismissing the worker. If the employer immediately dismisses the worker, they must pay a dismissal allowance.
Workers can file a complaint with the Labor Commission if their employer has unjustly dismissed, suspended, demoted, reassigned, punished, or taken any other punitive action against them. Workers or labor unions can also file a complaint with the Labor Commission if the employer has violated labor laws in relation to labor union activities and infringed upon the three labor rights.
Under Article 23 of the Labor Standards Act, there are three criteria for justifiable dismissal of a worker: the presence of justifiable reasons, avoidance of specific timing, and compliance with the dismissal process. To justify dismissing a worker, the employer must have justifiable reasons, avoid specific timing, and follow the dismissal process. If these procedures are not followed, the worker can file a complaint of unfair dismissal with the Labor Commission. Although workers have the burden of proving that they were unfairly dismissed, employers have the burden of proving that the dismissal was justified and that the worker voluntarily resigned. The period for filing a complaint of unfair dismissal is limited to three months, and as it is not easy for a worker who was dismissed orally to prove the fact of unfair dismissal, it is advisable to consult with legal experts or labor professionals before filing a complaint of unfair dismissal.
■ Procedures for handling cases in the Labor Commission's Adjudication Board
Labor disputes are fluid, ongoing, and collective in nature. If they are handled by general administrative or judicial agencies, it can be difficult to expect a fair, prompt, and rational resolution due to bureaucratic, inflexible, and non-expert factors. For this reason, labor disputes are being handled promptly, fairly, and rationally through a labor committee established as an independent administrative body. Therefore, decisions based on the quasi-legal authority of the Labor Commission have advantages over court decisions in terms of comprehensiveness, promptness, and expertise.
The Labor Commission has an organizational system that corresponds to local administration. It is composed of the Central Labor Commission, which covers the entire country, and 13 local labor committees for Seoul Metropolitan City, metropolitan cities, and provinces. And the Labor Commission is managed by the Minister of Employment and Labor. The Central Labor Commission reviews and approves, cancels, or modifies the decisions of the local labor committees. The Adjudication Board of the Labor Commission consists of three public interest jurors, including the chairman or standing members, and one employee and employer juror each. The Labor Commission decides whether to accept or reject a case and whether to dismiss it after going through an inquiry hearing and a judgment hearing, which involve examination of the parties and witnesses, after reviewing the application requirements and conducting a fact-finding investigation within 60 days of receiving the application.
❍ Request for Relief
An adjudication of unfair dismissal or unfair labor practices is initiated by a worker by applying for relief to the local labor committee with jurisdiction. The worker's application must be filed within three months from the day the employer's unfair dismissal or unfair labor practice occurred (or the end date if such conduct continues). The local labor committee with jurisdiction refers to the labor committee covering the location of the workplace where the unfair dismissal or unfair labor practice occurred.
❍ Investigation of Request for Relief Cases
The Labor Commission conducts necessary investigations and interviews with relevant parties without delay in cases in which relief has been requested. The investigation process involves ① the Labor Commission designating an investigating officer in charge. ② The applicant is asked to submit evidence to support the reasons for the application. ③ The respondent is provided with a copy of the application and the reasons and is asked to submit an answer and evidence to support their reasons. ④ If necessary, the parties, witnesses, or reference persons may be requested to attend and provide testimony, and a fact-finding investigation is conducted (Articles 45 and 46 of the Labor Commission Regulations).
❍ Inquiry on Unfair Dismissal Cases
When there is a request for relief from unfair dismissal, the Labor Committee conducts an inquiry within 60 days of the case being received to determine whether the dismissal was unfair. The inquiry is a preliminary procedure to determine the existence of unfair dismissal or unfair labor practices by examining evidence submitted by the parties and evidence collected during the investigation process. Public and labor committee members assigned to the case attend the inquiry to allow both parties to present their claims and to examine witnesses and references. After the inquiry, the public committee members determine whether there was unfair dismissal or unfair labor practices in the judgment committee. The worker and Employer committee members who attended the inquiry can also question the parties or witnesses and express their opinions before the public committee members decide the judgment.
❍ Settlement of Request for Relief Cases
In many cases where relief has been requested, the dispute between the parties is resolved by reconciliation rather than by a judgment from the Labor Committee. Reconciliation can resolve conflicting positions between labor and management and restore smooth labor-management relations. Moreover, since any agreement reached between the parties is voluntarily complied with, there is a guarantee that it will be enforced rather than being forced to comply with a relief order by the Labor Committee. The Labor Committee can recommend or mediate reconciliation at any time during the investigation and inquiry process. When reconciliation is reached, a reconciliation agreement is drawn up, which has the same effect as a settlement in a trial (Article 16-3 of the Labor Committee Act).
❍ Judgment on Unfair Dismissal
After the inquiry, the Labor Committee's adjudication committee convenes a judgment committee to determine whether there was unfair dismissal or unfair labor practices. The judgment committee requires the attendance of three public committee members, and the decision requires the support of two out of three members. If unfair dismissal or unfair labor practices are determined, a relief order is issued to the Employer. If they are not determined, the application for relief is dismissed. The Labor Committee provides the decision to the Employer and the applicant within 30 days of the judgment of the committee.
❍ Monetary Compensation System
If a worker does not wish to be reinstated as the remedy for unfair dismissal, there is a monetary compensation system where the Employer can pay an amount equal to or greater than the wage equivalent amount specified in the relief order and terminate the employment relationship. The amount equal to or greater than the wage equivalent amount includes the wage equivalent amount and consolation pay during the unfair dismissal period, which is a substitute for reinstatement. The Labor Committee may also order payment of the wage equivalent amount if the worker has been reinstated but cannot resume the job due to the Employer's fault or if the worker is unable to resume work due to injury or illness caused by the unfair dismissal.
■ Failure to Comply with Remedial Orders and Appeals Process
❍ Failure to Comply with Remedial Orders (Mandatory Execution Fine)
When a remedial order is issued, the Employer must comply with it. If the Employer fails to comply with the remedial order, a penalty will be imposed. However, this only applies after the remedial order has been confirmed. If the Employer disputes the labor committee's decision and applies for a retrial or files an administrative lawsuit, the remedial order is not confirmed. In this case, the mandatory execution fine system, which forces compliance with the unconfirmed remedial order, is recognized as an unfair dismissal remedy. If the Employer fails to comply with the remedial order by the deadline after receiving the remedial order or the retrial decision from the Central Labor Commission, the labor committee may impose a mandatory execution fine of up to 20 million won. The labor committee may impose and collect a mandatory execution fine within a limit of two years, twice a year from the date of the initial remedial order until the remedial order is complied with.
If the remedial order of the labor committee is canceled due to a retrial decision by the Central Labor Commission or a confirmed court decision, the labor committee must immediately suspend the imposition and collection of the mandatory execution fine upon its own initiative or upon the Employer's application and return any collected mandatory execution fine. The controversial point regarding compliance with the Employer's remedial order is the lack of compliance standards for unjust dismissal and other cases. There is a risk of friction between workers, Employers, and the labor committee over the interpretation of whether the remedial order has been complied with. Therefore, the judgment of compliance standards is based on complete compliance, and the purpose is to prevent such friction in advance, secure the effectiveness of the remedial order, and promote early resolution of labor disputes (Article 79 of the Labor Committee Rules).
❍ Remedial order appeals process
If there is a disagreement with the remedial order or dismissal decision of the local labor committee, the concerned party may apply for a retrial to the Central Labor Commission. The period for applying for a retrial is within 10 days from the date of receipt of the judgment. The retrial procedure of the Central Labor Commission is the same as the primary procedure of the local labor committee. Regarding the retrial decision of the Central Labor Commission, the concerned party may file a cancellation lawsuit according to the Administrative Litigation Act. The period for filing the lawsuit is within 15 days from the date of receipt of the retrial decision. If the company (employee) disagrees with the decision of the Central Labor Commission and files an administrative lawsuit, the defendant is the Central Labor Commission, and the concerned employee (Employer) becomes a party to assist the defendant. If the retrial is not applied for within the retrial application period or an administrative lawsuit is not filed within the lawsuit filing period, the remedial order, dismissal decision, and retrial decision are confirmed.
