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South Korea is not an “at-will” employment country, which means that an employer may not dismiss an employee for any reason nor without warning or notice. Under the Korean Labor Standard Act, an employer who has five or more employees may not dismiss or suspend from work any of its employees without “justifiable cause.” And even the employer can establish justifiable cause for dismissal, in Korea, the employer is still required to give a minimum of 30-days advance notice (or payment in lieu of notice) to the employee in all but the most exceptional of cases.
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. Also, you may view our labor/employment law archive at: Labor & Employment Law Archive
Justifiable Cause Defined under Korean Law
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 employee (“fault attributable to the employee”). In most cases, the employer must establish that the employee was provided the opportunity and resources to improve.
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 Korean Law. The employer has the burden to prove that a justifiable cause exists to terminate an employee.
Additionally, in some cases, an employee may be made redundant without liability imposed on the employer. For an article on this issue please see: Korean Redundancy Basics.
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. The case must be filed within three months from the occurrence of the unfair dismissal. 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. An employee, in some cases, is advised to bypass the Labor Relations Commission and file directly to court.
If you would like a free consultation with a lawyer, you may schedule a no-charge Initial Consultation at: Schedule a Call with a Lawyer.
