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Comparison
between the Labor Relations Commission and the Teachers’ Appeals Commission
Bongsoo Jung (Labor Attoreny, KangNam Labor Law Firm)
I. Introduction
A foreign
professor of a private university visited this Labor Law Firm for a
consultation regarding his unfortunate employment case. This professor had had
his employment contract renewed every year for the past 5 years, but this had
not been done this past February. The university stated that his employment
contract had expired, as he was a fixed-term employee. The professor thought
that his employment contract would be renewed according to the university
regulations, as he had better-than-average scores in the teacher evaluation. He
took legal action by submitting to the Labor Relations Commission an
application for remedy for unfair dismissal, but his claim was rejected. He
visited me to apply for an appeal.
Reviewing the details of his case, it was determined that, as he had
been an assistant professor, he should have taken his original application for
remedy to the Teachers’ Appeals Commission instead of the Labor Relations
Commission. This individual could have been protected from the unfair rejection
if he had known of the procedures of the Teachers’ Appeals Commission. This was
a very unfortunate situation.
In cases where an employee receives an unfair personnel disposition, he
or she can find resolution by applying for remedy with the Labor Relations
Commission. In 2023, the Labor Relations Commission handled 19,777 unfair
dismissal cases, whereas in comparison, the Teachers’ Appeals Commission only
disposed of 634 in 2022, a relatively small number of cases, although the
number is gradually increasing. Foreign
professors, in particular, can be confused as to whether a claim should be made
with the Teachers’ Appeals Commission, as they are fixed-term employees, but at
the same time have the status of a teacher. The information below will enable the
reader to understand the procedures of the Teachers’ Appeal Commission as they compare
to the procedures for remedy with the Labor Relations Commission.
II. Comparison
of Functions between the Labor Relations Commission & the Teachers’ Appeals
Commission
1. Division
of Scope
Individuals subject to applications
for remedy with the Labor Relations Commission are employees working for a
company that employs five or more employees. Provided, that government servants working for
state or local governments, and teachers, are excluded. Those government
servants and teachers to whom Korean labor laws do not apply can submit
applications for remedy through the Appeals Commission. The State
Administration has an Appeals Commission for public servants and the Teachers’
Appeals Commission for teachers, while local administrations have an Appeals
Commission for local public servants. The legislative branch and judicial branch
of the national government, the Constitutional Court, and the Central Election
Management Commission all have their respective appeals commissions.
Teachers have rights of education, guarantee of status, and guarantee of
freedom of speech, while at the same time they often have the duties of
educating and conducting research and maintaining their professionalism as
teachers, but are banned from political activities. Of particular interest, the
system related to the guarantee of status is with the Teachers’ Appeals
Commission, which deals with teachers’ disciplinary dispositions (such as
expulsions, dismissals, suspensions from office, wage reductions, and written
warnings), and disadvantageous dispositions (such as forced leaves, dismissals,
and removal from one’s position), and this system can involve a kind of
administrative trial.
Specifically, teachers are classified as kindergarten “directors and
assistant directors” (Article 20 of the Early Childhood Education Act), teachers
at elementary schools, middle schools, high schools, advanced technical high schools,
and “principals and vice-principals” at special schools (Article 19 of the
Elementary and Secondary Education Act), as well as those at universities, colleges,
colleges of education, and “presidents, deans, professors, vice-professors, associate
professors, assistant professors, and full-time instructors” at open schools
(Article 14 of the Higher Education Act). Accordingly, employees engaged in a
private school’s administrative work, and fixed-term employees, (Article 32 of
the Public Educational Officials Act, Article 54-4) do not fall within the
scope of the Teachers’ Appeals Act. Instead, they may apply for remedy with the
Labor Relations Commission.
2. Legal Procedures
of the Labor Relations Commission & the Teachers’ Appeals Commission
Item
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Labor
Relations Commission
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Teachers’
Appeals Commission
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Composition
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ㅇRelated
law: Labor Relations Commission Act.
ㅇOrganization:
Under the Ministry of Employment & Labor, National Labor Relations
Commission (1) and regional Labor Relations Commissions (12). The National
Labor Relations Commission (NLRC) is located in Sejong City, while regional
Labor Relations Commissions (LRC) are located in their respective regions.
ㅇPurpose:
To provide judgments for rapid and equitable resolution of unfair dismissal claims,
unfair labor practices, etc.
ㅇApplicable
to: All employees to whom the Labor Standards Act (LSA) applies.
ㅇ
Composition of judgment panel: 3 members representing the public interest, 1 member
representing employee interests, and 1 member representing government
interests.
ㅇTarget:
Claims of unfair dismissal under Article 23 of the LSA; Claims of unfair
labor practice: Article 81 of the Trade Union & Labor Relations
Adjustment Act. Correction of discriminative treatment: Article 9 of the Fixed-term
Employee Act.
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ㅇRelated
law: Special Act on the Improvement of Teachers’ Status.
(Related Enforcement Decree: Regulation Regarding the Teachers’ Appeals
Commission).
ㅇOrganization:
Under the Ministry of Education. There is one Teachers’ Appeals Commission in
Sejong City.
ㅇPurpose: As a collegiate
administrative agency, to provide a review and judgment equitably based upon
related laws and judicial rulings for disciplinary actions and
disadvantageous dispositions related to teachers.
ㅇApplicable to: Teachers working in
national, public and private kindergartens, elementary schools, and
universities.
ㅇComposition of judgment panel: 8
committee members, with a majority attending.
ㅇTarget:
-Disciplinary actions handled: expulsion, dismissal,
suspension from office, and warning letters.
-Other disadvantageous actions
handled: rejection of contract renewal, dismissal, removal of job title, and
forced leave.
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Application for remedy
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-The employee shall apply
for remedy for unfair dismissal or unfair labor practices, etc. within three
months from the date on which such action took place (Article 28 of the LSA,
Article 82 of the Trade Union and Labor
Relations Adjustment Act).
-Jurisdiction: The Labor
Relations Commission that is located in the district where such actions have occurred
(Article 29 of the LRC Regulation).
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The
employee shall apply for remedy within 30 days from the date on which the
action took place.
-If the employee has applied for remedy to the
Teachers’ Appeals Commission regarding expulsion or dismissal, the school
shall not appoint a successor until the Commission makes its final decision.
Provided, appointment of a successor can be done after the applicable period for
remedy claims has expired.
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Receipt of applications
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The adjudication committee is assembled when a
remedy application is received.
-Composed of three representatives of the public interest
to be in charge of adjudication.
-Appointment of an investigator.
-Request correction of any missing required items
for remedy application.
-Add or change the purpose for applying.
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When a
remedy claim is received, the Commission official shall immediately appoint an
investigator to be in charge.
-When it is determined that the remedy
application is missing required information, a request for correction should
be made within 7 days from the date on which the case was filed. If such required
correction is minor, the Commission will correct it directly.
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Providing and demanding written responses.
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-The
Commission sends the parties in charge of the presentation information to
advise on preparing a statement of reason, response documents, and the judging
procedures.
-The Commission will forward a copy of the remedy
application and statement of reason, and request submission of response
documents.
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The
Commission will, within 3 days, send a copy of the remedy application and
request the written responses.
-The
Commission will forward a copy of the remedy application and may request the
submission of written responses.
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Investigation
& submission of evidence
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The Commission requests the documents needed for
the case, and if necessary, may request attendance of the parties concerned
or witnesses. If necessary, the investigator may visit the workplace for
investigation purposes.
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Receives
the statement of reasons and forwards copies of such documents within 20
days.
-Upon receipt of the written response from the school, one copy will be sent
to the applicant. If necessary, the investigator may visit the workplace for
investigation purposes.
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Providing information on hearing dates
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A hearing
date is announced 7 days in advance.
-The hearing may be delayed for justifiable
reason.
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A hearing
date is announced 7 days in advance.
-The hearing may be delayed for justifiable
reason.
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Hearings
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The
hearing panel will consist of three representatives of the public interest,
one member representing the employee, and one member representing the
employer.
-Meeting
procedure: Confirm the case → Confirm the parties → Questions and statements → Decision.
-Persons
wishing to attend the meeting must receive permission in advance.
-The chairperson can designate a witness and question
him or her. In such cases, both parties will have equal opportunity to ask questions.
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ㅇHearing of the appeal.
-Participants:
the chairperson, commission members, commission official, investigator in
charge, both parties and witnesses.
-Meeting
procedure: Confirm the case → Confirm the parties → Questions and statements → Decision.
-Range of review: The commission cannot explore issues
other than the remedy claim.
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Decisions
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A judgment hearing is held. Presentations are
made to the three representatives of the public interest, who make decisions
by majority vote.
-Results: Admission, rejection, cancellation, or
settlement.
-Monetary compensation: Admission of unfair
dismissal, and monetary compensation instead of reinstatement
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-Method: The hearing requires attendance of two-thirds
of the registered members, and is decided by the majority vote of the
registered members in attendance.
-Deadline: The decision should be made within 60
days, with an additional 30 days allowed when necessary.
-Decisions: cancellation, dismissal, reduction of
disciplinary action, Order of implementation, etc.
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Sending
of decisions
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Sending the decision: For remedy applications,
the verdict shall require implementation of the order within 30 days.
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The decision will be sent within 15 days.
-When the decision document is complete, it is
sent to both parties.
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Follow-up
measures and appeals
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-Enforcement levy: If the employer has not complied
with the decision of the Commission, an enforcement levy of up to 20 million
won per person will be charged. Such levy may be charged twice per year, for
up to two years. If the employer wins the case in the appeal commission or
court, all levies previously paid will be refunded.
-An appeal may be entered within 10 days from the
date on which the party received the decision.
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-If the Commission’s decision cannot be admitted,
the teacher or the private school can file an administrative litigation.
-Teachers working for a public school may file
administrative litigation against the public school concerned. However, the
public school cannot file a lawsuit but must comply with the decision.
-Administrative litigation should be filed within
90 days from the date of the decision.
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3. Characteristics of the Teachers’ Appeals Commission
The Teachers’ Appeals Commission has many
positive characteristics, as the system was designed to fit the needs of
teachers as follows: ①The Commission cannot implement the worst of the original dispositions on
the applicant (Article 16 of the Teachers’ Appeals Regulation). ②When the applicant receives a
disposition of expulsion or dismissal, the school cannot assign a replacement
until a decision is made (Article 9 of the Special Law for Teachers’ Status). ③There is no fee for filing an
appeal, and the decision on an appeal can be made much quicker than in civil
litigation: within 60 days with a possible additional 30 days (Article 10 of
the Special Act on Enhancement of Teachers’ Status). Accordingly, the Teachers’
Appeals Commission is the best system for practical remedies by considering the
teachers’ guarantee of status, as in the aforementioned items.
III. Conclusion
The foreign professor recognized that the
rejection by the Labor Relations Commission was not due to the particulars of his
case, but due to the wrong commission being asked to handle the case. He also
understood that any appeal to the National Labor Relations Commission would not
be valid due to the different legal procedure. In his case, there were two
options that he could pursue: file a civil litigation, or look for a new job
after acquiring a D-10 (job-seeking) visa. In this instance, I suggested that
he look for another job instead of filing a civil litigation due to the fact
that it could be almost impossible for a foreigner to pursue such civil action
due to the expenses and time required. It was disappointing to realize that this
was the result simply because he did not know the proper legal protection
procedures. Obviously, employees need to become familiar with their applicable legal
protection in order to avoid losing their legal rights.
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