When you hire an employee in South Korea, you cannot freely fire the employee. Article 23 of Labor Standard Act(“LSA”) requires a “justifiable cause” if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees. Korean courts have held that a “justifiable cause” refers to such causes as a criminal offense, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.
Especially, because termination of employment is the most extreme measure, taking away an employee’s means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified. Thus, unless an employee’s specific conduct is something that makes the current employer-employee relationship no longer possible to continue, it would be advisable for an employer to take less severe disciplinary actions such as suspension of employment, reduction of salary, or reprimand.
Further, as regards the employment termination, under LSA, an employer may also terminate employees where the employer can establish (more…)
There are so many seconded workers in Korea. The secondment of an employee creates various legal issues in Korea. One of them is the seconded employee’s severance pay in Korea. The Korean labor law recognizes the severance payment liability of all employers having business in Korea. This doesn’t ask the nationality of the employee. (Please check here as to how the severance pay under Korean law is recognized and operates) The problem is that some foreign companies are ignorant of their severance pay liability under Korean law. Even further, some foreign employers try to evade their severance liability intentionally.
It is well known that the Korean labor law provides the employees with generous protections when it comes to the matter of disciplinary measures taken by the employer. In this article, we explain what protection is given to foreign employees in the area of termination and other disciplinary actions.
Employment Is Not “At-Will” in Korea
Unlike many other foreign legal regimes, Labor Standard Act of Korea (LSA) requires the employer having five or more employees to establish a just cause in order to exercise dismissal and any other disciplinary actions. In other words, employment is not “at-will” in Korea. (Note: There is a legal concept of no-fault dismissal based on the managerial hardship under the LSA, which requires very strict requirements to execute. This will be the subject of our upcoming article)
Foreign Employees Can Be Protected By the Korean Labor Law Even If the Labor Contract Says Korean Labor Doesn’t Apply
This rule of labor laws shall equally apply to the employment contract between Korean employers and Foreign employees in Korea, and vice versa.
More importantly, this is the case even when the employee working in Korea agrees in his employment contract that the Korean labor law does not apply. That is because the Private International Act of Korea which provides the general principles for the choice of law enables every Korean and foreign employee working in Korea to enjoy the protections under the mandatory rules of the Korean labor law.
Therefore, it is highly advisable that any foreign employee working in Korea and a multinational which has employees in Korea must understand how the Korean labor law regulates the dismissal and under what situation the dismissal becomes a wrongful termination.
What is the Just Cause for Dismissal in Korea?
The LSA does not provide what the just cause exactly means. It is up to the court’s review and interpretation. In this regard, it is firmly established in the Supreme Court’s precedent that (more…)
Q) Please could you clean up this question that nobody seems to be willing to answer. Is there a legally binding 40 working hour a week or not in Korea?
A) Yes, there is a 40-work-hours clause in Korean labor law.
The Labor Standard Act of Korea provides that “Work hours shall not exceed 40 hours a week, excluding hours of recess”.
However, in case of workers who are not less than eighteen years of age and women workers who are not in pregnancy, an employer and a workers’ representative can legally agree to extend work hours in excess of 40 hours a week to the extent that (more…)