An LSA amendment changed a list of employees exempt from advance notice of dismissal

Dismissal of an employee, to be legitimate, should be based on justifiable reasons and also in line with due procedures stated in the labor law. Advance notice of dismissal is one of those procedures. This post is about a recent amendment of the Labor Standards Act that changed a list of cases where advance notice is not required.

According to the amendment on January 15, 2019, an employer does not have to give a 30-day advance notice of dismissal to workers who have not worked three months or longer since they joined a company.

The amendment did two things.

First, it deleted the existing article 35 that listed employees exempt from the advance notice and made each item obsolete.

Article 35 (Exceptions to advance notice for dismissal)

The article 26 (on the advance notice for dismissal) does not apply to one the following categories of workers.

A worker who has been employed on a daily basis for less than three consecutive months
A worker who has been employed for a fixed period not exceeding two months
A worker who is paid monthly wage and has been working for less than six months
A worker who has been employed for seasonal work for a fixed period not exceeding six months
A worker in a probationary period “not exceeding three months”

Second, it added a new category of workers (No. 1 in the text below) exempted from the advance notice to the existing article 26. The amended article 26 goes like this.

Article 26 (Advance Notice of Dismissal)
When an employer intends to dismiss a worker (including dismissal for managerial reason), he should give the worker a notice of dismissal at least 30 days in advance of such dismissal, and, if the employer fails to give such advance notice, he should pay the worker ordinary wages for 30 days or more. An employer is exempted from the obligation to give the advance notice or the payment in-lieu-of-notice in one of the following cases:

1. A worker has worked for less than three months since he joined a company.
2. It is impossible for the employer to continue his/her business due to national disaster, war or any other unavoidable reason.
3. An employee has caused the employer a severe business problem or a massive property loss on purpose by taking actions* stated in the Enforcement Decree of the Labor Standards Act.

* Examples of such actions are disclosing business secrets to competitors or stealing products or materials and etc.

The amendment took effect on January 15, 2019. However, the exemption of a worker, who worked for less than three months, from the advance notice only applies to those who signed an employment contract on January 15, 2019 or thereafter.