South Korea is not an “at-will” employment country which means that employer may not dismiss an employee for any reason nor without warning or notice. And under the Labor Standard Act, an employer who has five or more employees may not dismiss or suspend from work any of its employee without justifiable cause. And even with the presence of justifiable cause for dismissal, the employer is still required to give a minimum of 30 days advance notice to the employee about such dismissal. And in lieu of notice period, the employer may choose to pay the employee a regular salary equivalent to 30 days of wages.
For similar articles, you may read: Terminate/Layoff an Employee in Korea: Terminating an Employee in Korea and Dismissal of Employees in Korea: Supreme Court of Korea Precedent.
The term justifiable cause is not clearly defined in the Labor Standard Act of Korea. But several cases decided by the Korean Supreme Court defined justifiable cause as the reason caused by the employee which makes it unfeasible and impossible for the employer to continue the employment relationship with the erring employee. The justifiable cause for dismissal may also be found in the employment contract signed by the employee, company policy, collective bargaining agreement, and other similar agreements unless the justifiable cause provided is against the law. And the employer has the burden of proof to prove to the court that justifiable cause exist in the termination.
Remedy for Wrongful Termination
An employee who has been wrongfully terminated by his employer may file a case of unfair dismissal to the Labor Relations Commission which has jurisdiction to employee’s workplace. The case must be filed within 3 months from the occurrence of the unfair dismissal or the case will be barred by prescription. In addition, if the employee has been proven to be wrongfully terminated, he/she is entitled to reinstatement from his/her former position and payment of back wages for the days the employee should have received his/her salary if not for the wrongful termination.
And if you would like to know more about Wrongful Termination or you want to speak with a lawyer about your legal concerns in South Korea, you may schedule a no-charge Initial Consultation: Please Schedule a Call.
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