SOUTH KOREA Law and Practice Contributed by: Sihoon Yang, Young Min Kim, Jung Mo Hong and Douglas Hwang, Yoon & Yang LLC
Severance If an employer fails to give the requisite notice of 30 days before dismissing an employee, then the employer must pay the employee an additional sum of money equivalent to at least 30 days’ worth of the employee’s ordinary wages pursuant to Article 26 of the Labor Standards Act. Also, aside from the requirements to provide prior notice and pay an additional allowance for failing to provide prior notice, there are further severance pay- related requirements under the Retirement Benefits Act that require employers to provide severance pay - ments, or retirement pensions, to resigning employ - ees who have been employed for at least one year. To provide these payments or pensions, an employer is required to operate a retirement benefit scheme in accordance with the Retirement Benefits Act. 7.3 Dismissal for (Serious) Cause Article 23 (1) of the Labor Standards Act requires an employer to have justifiable cause when dismissing an employee. The South Korean Supreme Court has defined that there is a justifiable cause if, owing to a fault attributable to the employee, it is impossible for the employer and the employee to continue their employment relationship under generally accepted social norms. Whether continuance of the employ - ment relationship is impossible under generally accepted social norms is determined by comprehen - sive consideration of various factors, including: • the purpose and nature of the employer’s business; • workplace conditions; • the employee’s position and responsibilities; • how and why the employee engaged in miscon - duct; • the impact such misconduct will have on the sound order of the business; and
• misrepresentation or concealment of educational background and work experience; • fabricating curriculum vitaes (CVs); • bad behaviour at work, such as unexcused absences; • refusing to follow orders relating to personnel movements (eg, transfers); • assaulting colleagues or supervisors; • inflicting harm on the company through criminal conduct (eg, embezzlement, breach of duty); and • personal misconduct committed outside the work - place. Valid Dismissals Pursuant to the Labor Standards Act, an employer must provide 30 days’ notice prior to the employee’s dismissal (Article 26) and provide the detailed reason for, and timing of, the dismissal in writing (Article 27). Furthermore, if an employer has collective agree - ments, rules of employment, employment contracts or other relevant agreements that separately provide additional procedures for taking disciplinary actions, then the employer must comply with such procedures. The South Korean Supreme Court has also held that disciplinary dismissals are invalid if an employer fails to follow the procedures laid out in its collective agree - ments, rules of employment, employment contracts or other relevant agreements when dismissing an employee. An employer’s dismissal of an employee is valid if the employer can justify: • its reason(s) for taking the disciplinary action; • the procedures followed for taking the disciplinary action; and • the level and/or adequacy of the disciplinary action taken. However, the South Korean Supreme Court has held that if any of the foregoing factors cannot be justified, then the resulting disciplinary dismissal is invalid. 7.4 Termination Agreements An employer and employee may terminate their employment relationship upon mutual agreement. There are no specific requirements as to the methods
• the employee’s past behaviour. Common Grounds for Dismissal
Ordinarily, grounds for dismissal are stipulated under a company’s rules of employment and other relevant internal regulations. Some of the most common grounds for dismissal recognised through court prec - edents are:
581 CHAMBERS.COM
Powered by FlippingBook