Dismissal is one of the inevitable elements of human resource management. An employer can lessen a possible adverse impact of dismissal by complying with legal requirements dismissal.
The following are the basic requirements for dismissal based on the labor standards act (LSA) of Korea.
1. An employer should have a justifiable reason to dismiss a worker.
Dismissal without a justifiable reason is invalid in Korea. However, the LSA does not give a definition of a “justifiable reason”.
The definition has been established by court rulings. The definition reads that a justifiable reason is one that makes it impossible for an employer to maintain employment relationship.
It sounds somewhat vague as it is a definition abstracted from numerous previous court rulings. The following list shows some specific reasons for dismissal that have been recognized by courts.
- Failure to follow instructions on job or personnel management
- Unauthorized leave of absence
- Early-leaving without approval, negligence
- Poor performance at work
- Physical or verbal violence at work
- Criminal offences outside workplace
- Obstruction of business, violation of the company rules
- Causing financial damages to the company
- Undermining the company’s reputation
- Violating work rules and safety rules
- Forging educational or professional attainment
2. Even if there is a justifiable reason for dismissal, an employer cannot fire a worker for some periods stipulated by by the LSA.
The periods are;
- temporary interruption of work for medical treatment of an occupational injury or disease and 30 days thereafter
- maternity leave and 30 days thereafter
3. An employer should give an advance notice to a worker 30 days before dismissal.
If an employer fails to give such notice, he/she should give a worker ordinary wage for 30 days instead.
The LSA states that an employer does not have to give advance notice to the following categories of workers.
- one who has been employed on a daily basis for less than three consecutive months
- one who has been employed for a fixed period not exceeding two months
- one who has been employed as a monthly-paid worker for less than six months
- one who has been employed for seasonal work for a fixed period not exceeding six months
- one in the first three months of a probationary period
4. An employer should give a worker a notification of a reason for dismissal in writing.
This requirement was recently added through revision of the LSA. And it is something distinct from the advance notice of dismissal. An employer should notify a worker of a reason for and date of dismissal in writing, that is, written on paper.
Recently, some Korean companies were known to notify workers of their dismissal through email or text messaging. This will not be valid means of notification anymore according to the position of the Ministry of Labor based on the new requirement.
Failure to give written notification invalidates dismissal, thereby allowing a dismissed worker to bring a case of unfair dismissal.
Dear Sir,
I am trying to collect some data on the incorporation of probationary period clauses in the employment contracts that Korean law firms use for their Foreign Legal Consultants.
As you may know, probationary clauses are rather common in Korea, but they are typically limited to non-professional employees like secretaries and support staff. I am informed that under the Labor Standards Act of Korea, they are limited to three months and cannot be contracted around, even with the consent of the employee. I would like to confirm this.
Not all Korean law firms have probationary clauses, but I know that at XXX, management uses a six-month period for their two-year employment contracts, which would seem to violate the LSA and almost suggests bad faith.
Thank you in advance for your help in this project.
Best regards,
David Barch
San Francisco, CA
Dear Mr. Barch,
There is no explict limitation on the length of probationary period in the labor standards act of Korea. The act only says that employers do not have to give a prior notice for dismissal to a worker in his first three months of probationary period. (Article 35 of the LSA, and article 15 of the enforcement decree of the LSA).
You can check the text of the labor standards text at http://english.molab.go.kr/english/Legislation/Legislation.jsp?grp=1&l_title=Labor%20Standards
For your information, the basic position by the Ministry of Labor with regard to the length of probation is that the length should be decided based on the nature of the concerned job and common sense and that it is advised to stipulate it in the rules of employment or the collective agreement.
BTW, kindly understand that I made a small change to your comment as it includes a name of a specfic company.
Sunny Lee