SOUTH KOREA Law and Practice Contributed by: Sihoon Yang, Young Min Kim, Jung Mo Hong and Douglas Hwang, Yoon & Yang LLC
If either of the parties wishes to challenge the Nation - al Commission’s decision on a re-examination, then the relevant party must file an administrative lawsuit in accordance with the Administrative Litigation Act within 15 days of being served with the National Com - mission’s decision. The administrative lawsuit can be appealed twice, much like the first option (ie, a civil lawsuit). In the past, where the petitioning employee could not be reinstated to their original position owing to expiry of the contract period or reaching retirement age, the Labor Relations Commission dismissed the employ - ee’s petition without reviewing the claim because the petition did not satisfy the criteria for a review. However, the Labor Standards Act, which came into force on 19 November 2021, prescribes the follow - ing in Article 30 (4): “The Labor Relations Commis - sion shall issue a remedial order or dismissal decision (ie, dismissing the case on merits after reviewing the claim) in accordance with paragraph (1) even if the employee cannot be reinstated to [their] original posi - tion (or for cases other than dismissal, reinstated to [their] original condition) due to expiration of contract period, reaching retirement age, etc. In such a case, if the Labor Relations Commission determines that the dismissal was unlawful, it may order the employer to pay the employee an amount equivalent to the wages the employee would have received had the employee continued to provide services during the period they were dismissed (or for cases other than dismissal, an amount equivalent to reinstate the employee to [their] original condition)”. Therefore, the Labor Relations Commission must review the petition filed by an employee irrespective of whether the employee can or cannot be reinstated to their original position (or original condition if the employee was not dismissed) and either render: • a remedial order (if the employee’s petition is sup - ported by justifiable cause); or • a dismissal decision (if the employee’s petition is not supported by justifiable cause). 8.2 Anti-Discrimination South Korean labour laws that prohibit employers from discriminating against employees include the:
• Labor Standards Act; • Equal Employment Opportunity Act; • Fixed-Term Workers Act;
• Act on the Protection, etc, of Temporary Agency Workers (the “Temporary Agency Workers Act”); and • Act on the Prohibition of Age Discrimination in Employment and Elderly Employment Promotion (the “Age Discrimination Act”). The foregoing legislation protects employees from various types of discrimination identified in the legis - lative intent and purpose of the acts, as follows. • Labor Standards Act – Article 6 prohibits employ - ers from discriminating against employees based on gender. Furthermore, employers are prohib - ited from discriminating in relation to employees’ working conditions based on nationality, religion or social status. • Equal Employment Opportunity Act – Article 7 (1) prohibits employers from discriminating on the basis of gender when recruiting or hiring employ - ees. Also, Article 8 (1) prohibits wage discrimina - tion by requiring employers to provide equal pay for equal work performed within the same busi - ness. • Fixed-Term Workers Act – Article 8 (1) prohibits employers from discriminating between employees under definite employment contracts and employ - ees under indefinite employment contracts who work in the same business or workplace, and in the same or similar positions. • Temporary Agency Workers Act – Article 21 (1) pro - hibits employers of agency employees (ie, dispatch agencies) and users of dispatched agency employ - ees (ie, companies that use dispatched agency employees; “user companies”) from discriminating between such dispatched employees and other employees of the user company who perform the same or similar work. • Age Discrimination Act – Article 4-4 (1) prohibits employers from discriminating against employees on the basis of age, without justifiable grounds, as to the following: (a) recruitment and employment; (b) wage, provision of money and valuables other than salary, and other welfare benefits;
583 CHAMBERS.COM
Powered by FlippingBook