[Column] Unfair Dismissal Claim: What to Check First After Receiving Notice of Dismissal

Unfair dismissal is one of the most contested areas of labor disputes because it is directly tied to a worker’s livelihood. Yet in actual consultations, many employees who have been dismissed do not clearly know where to file a complaint, whether filing a petition with the labor office can lead to reinstatement, or whether they can receive a settlement payment. In particular, when an employer suddenly demands that an employee leave the company, it is important to calmly review whether the situation legally constitutes dismissal before responding emotionally.

The Korean Labor Standards Act provides that an employer must have a justifiable reason to dismiss an employee. The employer must also notify the employee in writing of the reasons for dismissal and the date of dismissal, and a dismissal that violates this requirement may be found invalid regardless of whether the underlying reason exists. Therefore, if the company verbally tells an employee not to come in starting the next day, or demands resignation without any particular explanation, procedural defects may become an issue.

In practice, the point employees most often confuse is the difference between filing a complaint with the labor office and filing an application for remedy with the Labor Relations Commission. Issues involving violations of the Labor Standards Act, such as unpaid wages, unpaid overtime allowances, or failure to prepare an employment contract, may be subject to a petition or criminal complaint with the labor office. However, the body that determines whether the dismissal itself was justified and can order reinstatement or monetary compensation is the Labor Relations Commission. Therefore, if an employee intends to contest an unfair dismissal, the matter should not end with a labor office complaint alone, and the option of filing an unfair dismissal remedy application with the Regional Labor Relations Commission should also be reviewed.

There is a filing deadline for an unfair dismissal remedy application. Under the Labor Standards Act, an application for remedy against unfair dismissal must be filed within 3 months from the date of dismissal. This period is highly important. The deadline is not automatically extended merely because the employee was negotiating with the company, waiting for the possibility of reinstatement, or discussing settlement. Therefore, once notice of dismissal is received, the deadline for filing a remedy application must be checked first, regardless of whether negotiations are ongoing.

In unfair dismissal cases, there are many instances where the dispute is over whether the situation was a dismissal at all. Employers may use various terms such as recommended resignation, expiration of contract term, termination after probation, termination of commissioned work, or termination of a freelance contract. However, the legal assessment is not determined solely by the label used. It is necessary to examine the circumstances as a whole, including whether the employee had an actual intention to continue working, whether the company unilaterally ended the employment relationship, and whether pressure or coercion was involved in the preparation of a resignation letter.

Employers also tend to raise certain recurring arguments. Common examples include claims that the dismissal was unavoidable due to business difficulties, that the employee’s performance was insufficient, or that the measure was unavoidable due to organizational restructuring. However, dismissal for managerial reasons must satisfy the statutory requirements, and justifiability is not automatically recognized merely because of declining sales or internal company circumstances. Dismissal of a low-performing employee also requires review of the objectivity of the evaluation standards, whether opportunities for improvement were provided, and whether training or reassignment was possible.

Dismissal during a probationary period or cases involving expiration of a fixed-term contract should also not be judged too easily. An employer is not free to dismiss an employee simply because the employee is in a probationary period, and reasonable evaluation and procedures are required. In the case of a fixed-term employee, a dispute does not necessarily end simply because the employer asserts that the contract term has expired. If there are circumstances supporting a legitimate expectation of renewal, refusal to renew the contract may be disputed in a manner similar to unfair dismissal.

One issue employees often ask about in unfair dismissal cases is settlement money. The fact that unfair dismissal is legally recognized does not necessarily mean that a separate settlement payment must be made. In practice, however, there are many cases in which monetary compensation is selected instead of reinstatement, or the dispute is resolved through settlement during the Labor Relations Commission procedure with payment of a certain amount. The amount of monetary compensation or settlement may vary depending on factors such as length of service, wage level, circumstances of dismissal, possibility of reinstatement, and the degree of procedural violation by the employer.

The most important part of the initial response is securing materials. Text messages or emails notifying dismissal, internal messenger conversations, recordings, performance evaluation materials, employment contracts, pay slips, and materials concerning the circumstances in which a resignation letter was prepared can all serve as important evidence. In particular, if there is a possibility that the company will claim the departure was a recommended resignation, it is important to leave an objective record of the conversations at the time and the circumstances of the request to resign. Emotional protests or the impulsive signing of a resignation letter may work against the employee in later procedures.

Because unfair dismissal cases often involve disputes over whether there was a dismissal in the first place, it is necessary to comprehensively review the facts and evidence. Depending on the type of case, the procedures and issues to be reviewed may differ, including an application for remedy with the Labor Relations Commission, a complaint with the labor office, and wage claims. Therefore, it is important to determine the direction of response based on the circumstances of dismissal and the substantive nature of the employment relationship.

Ultimately, reporting unfair dismissal is not simply a matter of submitting a complaint to a certain agency. It is necessary to distinguish the roles of the labor office and the Labor Relations Commission, avoid missing the 3-month deadline for filing a remedy application, and examine whether an actual dismissal existed behind the company’s use of terms such as recommended resignation or expiration of contract. In particular, during the initial response stage, it is important to systematically organize relevant materials and facts, and such preparation can have a significant impact on the later dispute resolution process. (Oh Sang-won, Managing Partner, Taelim Seoul Main Office)

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