A Case Involving a Claim of Workplace Harassment and a Company’s Exercise of Personnel Authority
Bongsoo Jung (Korean labor attorney, KangNam Labor Law Firm)
I. Introduction
This case involves a report of workplace harassment and a personnel reassignment at a mid-sized company. The purchasing team leader (hereinafter “Complainant”) of the company was repeatedly called into the office and scolded by the finance director (“Alleged Perpetrator 1”)—known for being perfectionistic in work-related matters—due to perceived inadequacies in job performance. The Complainant believed that although the reprimands were related to work, they were excessive. For example, the Complainant described being yelled at with an annoyed tone and anger in the face while being asked, “Who told you to do it this way?” At the time, the Complainant found the scolding difficult to endure and sent a KakaoTalk message to a fellow employee. Due to such incidents, the Complainant reported the supervisor’s harassment to the HR team in June 2022 and again in February 2023. While the head of the HR department did not see the treatment as workplace harassment, the president got involved and changed the reporting line between the Complainant and the finance director so that the Complainant would report directly to the company president. This resolved the matter internally. As a result, it was difficult at the time to definitively classify the Complainant’s grievance as workplace harassment.
In November 2024, a new president (Alleged Perpetrator 2) was appointed, and the Complainant had only two brief meetings with the new president. However, in January 2025, the president rated the Complainant as a low performer in the performance evaluation, and on February 1, 2025, returned the Complainant’s reporting line back to the finance director. The president also ordered that the Complainant’s work location to be moved to the finance department. The Complainant refused the change of location on account of Alleged Perpetrator 1, and began performing work via email, refusing to deal with the finance director in person. The company, viewing the Complainant’s refusal to comply with the relocation order and insistence on e-mail communications rather than reporting in person to the finance director as a personnel issue, notified the Complainant of a forthcoming personnel committee meeting. Subsequently, the Complainant reported both the finance director and the new president to the Ministry of Employment and Labor as instigating workplace harassment. After confirming the harassment report to the Ministry, the company decided to suspend the personnel committee proceedings and to first investigate whether workplace harassment had indeed occurred. The company appointed an external certified labor attorney to conduct the investigation.
In relation to this case, it is necessary to first examine the objective findings of the investigation to determine whether workplace harassment had actually occurred. Then, justification for potential disciplinary action against the Complainant, for refusing the personnel reassignment, must be considered. The specific legal issues to be examined include: (1) whether the president’s designation of the Complainant as a low performer constitutes workplace harassment; (2) whether the company’s returning the reporting line to the original connection (with Alleged Perpetrator 1) and relocation (to the finance department) amounts to workplace harassment; and (3) whether disciplinary action based on the refusal to follow the company’s personnel order constitutes unfair treatment of someone complaining about workplace harassment.
II. Investigator’s Case-by-Case Assessment of Whether Workplace Harassment Had Occurred
1. Whether the President’s Performance Evaluation of the Complainant as a Low Performer Constitutes Workplace Harassment
The Complainant argued that evaluating her as a low performer in January 2025 constituted workplace harassment, since there had been only two brief meetings with the new president, who had assumed office in November 2024. The Complainant claimed that performance evaluations should be based on observing a worker’s performance over a certain period and reviewing results, but that in this case, the evaluation was made subjectively over too short a period, with the intention of harassing the Complainant.
In response, the president notified the Complainant of the “low performer” rating during a meeting on January 10, 2025. The president explained that the evaluation was based on a one-on-one meeting with the Complainant and email communications related to job performance. The president also stated that the evaluation was made after prior consultation with employees from relevant departments who worked with the Complainant, and was based on managerial judgment and experience.
The Complainant did not submit specific evidence to support her claim and only argued that the evaluation was unfairly conducted without sufficient opportunity to explain, based on two brief meetings. The investigator concluded that there was no evidence proving that the evaluator had abused his personnel authority, nor engaged in workplace harassment.
In relation to the above, it is necessary to assess whether the president’s evaluation of the Complainant as a low performer constituted an abuse of personnel authority or was an exercise of legitimate managerial discretion. If it were determined that the president abused his authority, it may constitute workplace harassment; otherwise, it would fall under the category of a rightful exercise of personnel authority.
2. Whether the Company's Change of Reporting Line and Job Relocation Constitute Workplace Harassment
The Complainant had entered a complaint of workplace harassment against the finance director in June 2022 and April 2023, which led to a change in her line of reporting. The Complainant argued that the recent change of reporting line back to the finance director failed to consider the separation measures previously taken for an alleged victim of workplace harassment and thus constituted an inappropriate personnel action.
In response, the finance director asserted that it was appropriate from an HR management perspective for the purchasing team’s work to be overseen by the finance department, and that the decision was a reasonable one by the president. The finance director further claimed that the alleged incidents in June 2022 and April 2023 were internal work conflicts, not instances of workplace harassment.
According to the HR director’s investigation, the incidents in June 2022 and February 2023 had already been closed as “internal work-related conflicts” by the former president. The matter had not escalated into a formal case with the Ministry of Employment and Labor, and the previously reported incidents did not involve verbal abuse or personal attacks that would typically constitute workplace harassment.
Based on this, the investigator concluded that the change in the purchasing department’s line of reporting was part of a personnel policy aimed at enhancing the speed and accountability of purchasing operations. Therefore, it could not be considered an abuse of personnel authority by the employer and did not constitute workplace harassment.
3. Whether Disciplinary Action for Refusing a Company’s Personnel Order Constitutes Unfavorable Treatment
On February 1, 2025, the company ordered the Complainant to relocate to the finance department in accordance with the change in reporting line. However, since the complainant continuously refused the reassignment, the company notified her on April 1, 2025, that she would be required to attend a personnel committee meeting.
The Complainant argued that the reason for not moving to the finance department was that it was not a change in her work duties but merely a change in reporting line. The Complainant stated she had never been formally notified by the company of a personnel reassignment resulting from the reporting line change, and believed there was no hindrance in performing her duties from her current position. Above all, the Complainant explained that she was fearful of working alongside the finance director, who she believed had previously engaged in workplace harassment against her in 2022 and 2023.
In response, the company’s HR manager stated that the company had notified the Complainant of the change in reporting line and accordingly issued the work relocation order, but the Complainant had refused to obey. The company then notified the Complainant of the personnel committee meeting and considered disciplinary action. However, upon learning that the Complainant had filed a workplace harassment claim with the Ministry of Employment and Labor, the company decided to suspend the committee meeting until the harassment investigation was concluded.
The investigator determined that the company’s seat reassignment order and the matter of convening a personnel committee were part of a legitimate personnel order by the company and did not constitute an abuse of authority. Although the Complainant may claim she suffered an unfavorable result for reporting workplace harassment, such claims should be addressed through public remedies like proceedings with the Labor Relations Commission. Therefore, this case does not constitute workplace harassment.
III. Legal Protections for People Reporting Workplace Harassment
This case of alleged workplace harassment represents a conflict between the company’s exercise of personnel authority and the employee’s right to be protected from workplace harassment. First, in this context, we examine relevant laws and court precedents to clarify the scope of a company’s discretionary personnel authority and the extent of protection afforded to employees who report workplace harassment.
1. Court Precedents Regarding the Company’s Personnel Authority
A company’s personnel authority is recognized as a discretionary right of the employer, provided it does not involve an abuse of rights. According to Supreme Court precedents: “The reassignment or relocation of an employee is, in principle, within the authority of the employer as the person responsible for personnel matters. Within the scope necessary for business operations, the employer may exercise considerable discretion, and unless such action violates the Labor Standards Act or constitutes an abuse of rights under special circumstances, it is valid. Whether a reassignment or relocation constitutes an abuse of rights should be determined by weighing the necessity of the reassignment for business purposes against the disadvantages it imposes on the employee’s livelihood. If the disadvantages resulting from a reassignment based on business needs do not significantly exceed the level of burden that employees are ordinarily expected to bear, then it falls within the bounds of legitimate personnel authority and does not constitute an abuse of rights.” This view has been consistently held by the courts.
2. Prohibition against Unfavorable Treatment of People Reporting Workplace Harassment
Under the current Labor Standards Act, an employer shall not dismiss or otherwise take unfavorable action against a worker for reporting workplace harassment or claiming to have suffered from it (Article 76-3, Paragraph 6). Violation of this provision is punishable by up to three years of imprisonment or a fine of up to KRW 30 million (Article 109, Paragraph 1). Additionally, civil liability arises under tort law, and the employer may be held liable for damages. This punishment provision exists to ensure the proper functioning of internal resolution systems in the workplace by deterring retaliation against those who report workplace harassment.
Although the Labor Standards Act does not explicitly define what constitutes “dismissal or other unfavorable treatment,” Article 14, Paragraph 6 of the Act on Gender Equality in Employment and Support for Work-Family Reconciliation (“Gender Equality Act”) provides illustrative examples that can be referenced.
Article 14 of the Gender Equality Act (Employer's Measures Upon Occurrence of Workplace Sexual Harassment), Paragraph 6 states:
An employer shall not take any of the following unfavorable measures against a worker who reports sexual harassment or is a victim of such harassment:
1. Dismissal, discharge, termination, or other actions resulting in loss of status
2. Disciplinary action, suspension, salary reduction, demotion, restrictions on promotion, or other unjust personnel measures
3. Failure to assign tasks, reassignment of duties, or other personnel measures against the worker’s will
4. Discrimination in performance evaluations or peer reviews, or resulting discriminatory treatment in pay or bonuses
5. Limiting opportunities for education and training for job skills development
6. Acts causing psychological or physical harm such as ostracism, assault, or verbal abuse, or neglecting to prevent such acts
7. Any other unfavorable treatment against the worker’s will.
3. Standards in Case Law for Determining Unfavorable Treatment
If an employer dismisses or otherwise takes unfavorable action against a(n alleged) victim of workplace harassment, it constitutes a violation of Article 76-3(6) of the Labor Standards Act and a tort under Article 750 of the Civil Act. However, if the employer’s action is unrelated to the harassment report or the claim raised by the victim, it is not a violation of Article 76-3(6). Likewise, if the employer’s action is based on a separate and legitimate reason, it is not considered a violation.
Whether an employer’s action against the (alleged) victim constitutes unlawful unfavorable treatment related to workplace harassment should be judged by comprehensively considering the following factors: ① Whether the action was taken close in time to the harassment report or claim; ② The background and process of the action; ③ Whether the reason given by the employer existed before the victim’s claim; ④ The extent to which the victim’s conduct infringed upon others’ rights or interests, and the severity of disadvantage the victim suffered due to the employer’s action; ⑤ Whether the action was unusual or discriminatory compared to previous practices or similar cases; ⑥ If the victim sought legal remedy (e.g., filing a complaint), the progress and outcome of such proceedings should also be taken into account. Importantly, the term “unfavorable action” includes not only dismissal, discharge, or termination (i.e., loss of employment relations), but also failure to assign work, job reassignment, or any other personnel action against the worker’s will.
IV. Appropriate Personnel Measures and Implications
The company requested an external, objective investigation agency to review the report of workplace harassment filed by the Complainant. As a result of the investigation, the company was notified that the report did not constitute workplace harassment. Following this, the company proceeded to convene a personnel committee meeting to seek disciplinary action against the Complainant for refusing to comply with the personnel reassignment. In response, the company’s advisory labor attorney offered the following recommendations:
First, the company must proceed with caution until the workplace harassment complaint is fully concluded. The Complainant’s report of workplace harassment has not yet been closed by the Ministry of Employment and Labor, and a re-investigation may be requested at any time. In particular, under the mandatory provisions of the Labor Standards Act, any personnel disadvantage against a reporter of workplace harassment is strictly limited. Even if the Complainant’s report is ultimately not recognized as workplace harassment, protective measures for the reporter remain in effect regardless of the investigation’s outcome. Therefore, the company should wait until the case with the Ministry is formally closed.
Second, the company should consider convening the personnel committee at a later time to review potential disciplinary action. While it is important for the company to take strict disciplinary action in response to the Complainant’s refusal to comply with the reassignment order and avoiding work in person and instead insisting on working via email, it must also recognize the Complainant’s current whistleblower status and the ongoing case at the Ministry. Accordingly, the company should formally notify the reassignment order again, for example via an official document. If the Complainant continues to refuse the order, the company may then convene the personnel committee in accordance with internal rules and proceed with appropriate disciplinary action.
Ultimately, while a company may freely exercise its personnel authority at any time, in cases such as this where a workplace harassment report has been filed and not yet decided by the Ministry of Employment and Labor, personnel actions should first and foremost prioritize the protection of the reporting employee. By doing so, a balance can be achieved between the company’s managerial authority and the employee’s legal protections under labor law.
|
|
Connect to the app
