Weekly Contributions

Cases Concerning the Validity of Disciplinary Procedures

Bongsoo Jung, Korean Labor Attorney / KangNam Labor Law Firm

 

I. Importance of Disciplinary Procedures

To determine whether a disciplinary action is valid, one must examine the existence of disciplinary grounds, the appropriateness of the level of discipline, and the legality of the disciplinary procedure together. However, not every procedural defect automatically invalidates a disciplinary action. Its effect depends on the purpose and importance of the procedure prescribed by law, a collective agreement, rules of employment, or disciplinary regulations, as well as the seriousness of the defect. In particular, in the case of dismissal, Article 27 of the Labor Standards Act makes written notice of the grounds and timing of dismissal a requirement for the dismissal to take effect. Accordingly, even where justifiable grounds for dismissal exist, a dismissal is ineffective if this requirement is not satisfied. In addition, where a collective agreement or rules of employment prescribe the composition of a disciplinary committee, advance notice, an opportunity to explain, or an appeal or review procedure, those procedures must in principle be followed. Conversely, if there is no such provision, a private-sector employer is not generally subject to a statutory duty to allow the employee to appear before a disciplinary committee or provide an opportunity to explain (Supreme Court Decision 91Da29071, Mar. 27, 1992). The following two cases, both of which I personally represented, show how disciplinary procedures can change the outcome of an actual dispute.

 

II. Case 1: Labor Case Concerning Written Notice of Dismissal[1]

G Academy, located in Mok-dong, Seoul, employed approximately 20 native English-speaking and Korean instructors to provide English education to elementary and middle school students. To adjust the ratio between native English-speaking and Korean instructors, the academy director notified two foreign instructors whom he considered less qualified (hereinafter, the “Employees”) of their dismissal around mid-August and dismissed them on August 27. The Employer asserted that it had orally notified the Employees in advance of the dismissals and, after their termination, sent them written dismissal notices by mobile phone text message and ordinary mail on September 2, 2010. The Employees filed applications for remedy for unfair dismissal with the Seoul Regional Labor Relations Commission on November 24, 2010.

In adjudicating the case, the Labor Relations Commission ruled as follows:

“As summarized above, the principal issue in this case is whether the dismissals were justified, that is, whether the grounds, procedure, and severity of the dismissals were appropriate. Regarding the validity of the dismissals, Article 27(1) of the Labor Standards Act provides that ‘an employer intending to dismiss an employee shall notify the employee in writing of the grounds and the effective date of dismissal,’ and paragraph (2) provides that ‘a dismissal of an employee shall take effect only if notice is given in writing in accordance with paragraph (1).’ The Employer contends that it mailed written notices of dismissal to the Employees, but it has failed to prove that such notices were in fact mailed. It is therefore difficult to find that the Employer complied with the written-notice procedure required by Article 27 of the Labor Standards Act. Accordingly, the dismissals are unfair without any need to examine whether the grounds for dismissal were justified. Meanwhile, because the Employees do not seek reinstatement, the Commission considers it appropriate to order payment of KRW 9.5 million to each of Employees 1 and 2, based on the monthly wages they would have received through the date of this decision.”

The Employer objected that it had to pay approximately KRW 20 million merely because of one written dismissal notice and argued that the Commission’s decision was unfair. However, Article 27 of the Labor Standards Act expressly makes written notice a requirement for a dismissal to take effect by requiring an employer to state the grounds and effective date of dismissal in writing. The purpose is to ensure that dismissal, which can have a serious impact on an employee’s livelihood, is handled carefully and to provide clarity when disputes later arise concerning unfair dismissal and severance pay.

As of 2026, the principle illustrated by this case remains fully valid. Under Article 27 of the Labor Standards Act, the grounds and effective date of dismissal must be given in writing. If the written notice contains no statement at all of the grounds for dismissal, it does not constitute lawful written notice even if the employee already knew those grounds (Supreme Court Decision 2017Da226605, Feb. 25, 2021). However, where the employee already knew the specific grounds for dismissal through the disciplinary process and had a sufficient opportunity to respond, the notice may state the grounds in somewhat abbreviated form (Supreme Court Decision 2021Du50642, Jan. 14, 2022). An email may also, exceptionally, qualify as valid written notice if, considering its form and circumstances of preparation, the specificity of the grounds and effective date of dismissal, and whether it was received, it sufficiently performs the function of written notice (Supreme Court Decision 2015Du41401, Sept. 10, 2015). In practice, dismissal notice or payment in lieu of notice and the written-notice requirement under Article 27 should be treated as separate requirements. The safest practice is to deliver, before the effective date of dismissal, a document clearly stating the grounds and effective date of dismissal and to retain proof that the employee received it.

 

III. Case 2: Labor Case Concerning Disciplinary Procedures[2]

Mihyang Transportation, a taxi company in Yeosu, Jeollanam-do, employed approximately 40 workers. In August 2006, after years of accumulated operating losses, the company attempted to increase the daily taxi revenue quota, but the labor union refused. Seeking to pressure the union into accepting the increase, the company then announced that the customary 12-hour workday would be limited to the eight hours stipulated in the collective agreement. When union members did not follow the company’s direction, the company sent individual warning letters stating that violation of the company’s instructions could result in suspension or dismissal. On September 6, 2006, about ten union members entered the president’s office to protest. During the confrontation, Employees 1 and 2 (hereinafter, the “Employees”) took the lead, used abusive language toward the representative director, and threatened to expose company misconduct and force the company to shut down.

The company then convened a disciplinary committee composed of four members appointed by the company pursuant to the rules of employment and imposed a three-month unpaid suspension on the Employees for “breach of employee duties.” On October 26, 2006, the Employees filed applications for remedy for unfair suspension against the Employer with the Jeonnam Regional Labor Relations Commission. On December 19, 2006, the Regional Labor Relations Commission granted the requested remedy. The Employer filed for review with the National Labor Relations Commission on January 30, 2007. The National Labor Relations Commission reached the same conclusion as the Regional Labor Relations Commission and dismissed the request for review. In substance, the Commission recognized the legitimacy of the disciplinary grounds but found that the disciplinary procedure could not be regarded as valid.

The National Labor Relations Commission ruled as follows:

“The disciplinary grounds against the Employees are established. Based on the transcript, written statements of the persons concerned, and related video materials, it is recognized that the Employees used abusive language during the argument between the representative director and the Employees on September 6, 2006.”

“However, even where disciplinary grounds against the Employees are established, the Employer’s disciplinary action can be recognized as valid only when not only the disciplinary grounds but also the disciplinary procedure is lawful. The Employer argues that it gave notice of termination of the collective agreement on October 29, 2004, and that the agreement expired on May 1, 2005. It further argues that matters such as the composition of the disciplinary committee belong to the obligatory, rather than normative, part of a collective agreement and therefore no longer applied in this case; accordingly, the Employer contends that its disciplinary procedure was proper because it formed the committee pursuant to the rules of employment. However, under Article 33(1) of the Trade Union and Labor Relations Adjustment Act, provisions of a collective agreement concerning working conditions and other treatment of employees have normative effect, and such normative provisions continue to form part of the individual employment contract even after the collective agreement expires and before a new agreement is concluded. Such normative provisions include matters concerning wages, allowances, working hours, holidays, leave, the types and calculation of industrial accident compensation, severance pay, workplace discipline, promotion, rewards and sanctions, and dismissal. Accordingly, the provisions in the collective agreement concerning the composition of the disciplinary committee constitute normative provisions.[3]

“Therefore, although disciplinary action against the Employees should have been taken through the proper procedure prescribed by the collective agreement, the Employer did not establish a disciplinary committee composed of three representatives from labor and three from management as required by the collective agreement. Instead, it disciplined the Employees through a committee consisting solely of members appointed by management pursuant to the rules of employment. This constitutes a procedural defect, and the disciplinary action therefore cannot be recognized as valid and is an unfair disciplinary action.”

The core legal principle of this decision is even more clearly confirmed in current case law. Article 32 of the current Trade Union and Labor Relations Adjustment Act provides that the term of a collective agreement may be set for a period not exceeding three years. Even after a collective agreement expires, however, provisions concerning individual working conditions, such as wages and working hours, may remain terms of the employment contract unless they are changed by a new collective agreement or rules of employment, or with the individual employee’s consent. The Supreme Court has held that the same principle applies to provisions concerning grounds and procedures for dismissal (Supreme Court Decision 2008Da70336, Feb. 12, 2009). In addition, where a collective agreement or rules of employment prescribe the composition of a disciplinary committee and the committee is constituted differently, the disciplinary action is, in principle, invalid because of a serious procedural defect, regardless of whether the disciplinary grounds are established.[4] Supreme Court Decision 94Nu9177, Feb. 23, 1996, cited in the original article, held that the establishment and composition of a disciplinary committee may constitute working conditions insofar as they serve reasonable and fair personnel administration and sanctions. For the proposition that dismissal procedures continue as terms of the employment contract after a collective agreement expires, Decision 2008Da70336 cited above provides more direct authority.

In conclusion, the Employer’s suspension in this case was held to be unfair even though the disciplinary grounds themselves were recognized, because the Employer failed to comply with the important procedural requirement governing the composition of the disciplinary committee. After the Regional Labor Relations Commission’s initial decision, the company could have considered imposing discipline again through a lawful procedure. The fact that a disciplinary action is invalid because of a procedural violation does not automatically extinguish the employer’s disciplinary authority concerning the same grounds. Imposing discipline again after newly completing the required procedures does not violate the principle of double jeopardy or the principle of good faith.[5] In some cases, a defect in the initial disciplinary procedure may be substantively corrected and cured through a lawful review procedure.[6] Conversely, where the rules of employment or collective agreement guarantee a review procedure but the employer fails to conduct it at all, or where the review procedure itself contains a serious defect, the entire disciplinary action may be invalid.[7] Accordingly, in a renewed disciplinary proceeding or review, the employer should not merely repeat the procedure as a formality. It should reexamine from the beginning the specification of the disciplinary grounds, the composition of the committee, the employee’s opportunity to explain, and the deliberation and voting process.

 

IV. Matters Relating to Disciplinary Procedures

 

1. General Disciplinary Procedure

Disciplinary procedures vary according to the company’s rules of employment, collective agreement, personnel regulations, and disciplinary regulations. If those rules contain no separate procedural requirements, the law does not automatically require a disciplinary committee or an in-person opportunity to explain for every disciplinary action. In the case of disciplinary dismissal, however, written notice under Article 27 of the Labor Standards Act is mandatory, and any disciplinary procedure established by the company itself or prescribed in a collective agreement must be followed. In practice, before commencing disciplinary action, the most important step is to identify the applicable rules and first confirm the disciplinary limitation period, the required composition of the disciplinary committee, the advance-notice period, the opportunity to explain, and any review procedure.

(1) Confirm the applicable laws, collective agreement, rules of employment, and disciplinary regulations; (2) identify the occurrence of the disciplinary grounds and check the disciplinary limitation period; (3) investigate the facts and secure objective evidence; (4) specify the disciplinary grounds and the applicable provisions; (5) obtain approval from the personnel authority for referral to disciplinary deliberation; (6) constitute the disciplinary committee in accordance with the applicable rules and check for conflicts of interest; (7) notify the employee of the date, time, place, and disciplinary grounds and provide a reasonable period to prepare a defense; (8) provide an opportunity during the disciplinary hearing to make statements and submit explanatory materials; (9) conduct the committee’s deliberation and vote and prepare a record of the meeting; (10) have the personnel authority finalize the disciplinary action; (11) notify the employee of the disciplinary result, and, particularly in the case of dismissal, provide written notice of the grounds and effective date of dismissal; and (12) conduct any review or objection procedure required by the rules of employment or collective agreement.

 

2. Composition of the Disciplinary Committee

Where the rules of employment or a collective agreement require disciplinary action to be taken through a disciplinary committee, the prescribed composition and voting procedure must be followed precisely. In particular, if the rules require equal representation of labor and management, a member recommended by the labor union, or participation by a member with specified qualifications, those requirements may not be omitted at the employer’s discretion. The Supreme Court holds that where a disciplinary committee is constituted contrary to the applicable rules, there is, in principle, a serious procedural defect regardless of whether the disciplinary grounds are established.[8] However, if the employer has genuinely given the employee side an opportunity to select its committee members and the employee side, without justifiable reason, voluntarily waives or refuses to exercise that right, the disciplinary action is not necessarily invalid merely because employee-side members did not participate.

 

3. Opportunity to Explain

Where a collective agreement, rules of employment, or disciplinary regulations guarantee the employee an opportunity to appear and explain or to submit explanatory materials, that opportunity must be provided in a substantive manner. A purely formal notice to attend may be insufficient; the employee should be notified of the date, time, and place with enough time to understand the disciplinary grounds and prepare a defense. In addition, if the disciplinary committee adds a new disciplinary ground that is fundamentally different from the grounds originally notified to the employee or referred for disciplinary deliberation without giving the employee an opportunity to respond, the procedure is defective.[9] On the other hand, where neither the collective agreement nor the rules of employment contain any provision requiring an opportunity to explain, there is generally no independent statutory duty that always requires such an opportunity to be given.[10]

 

4. Consultation and Agreement Clauses with the Labor Union

Where a collective agreement requires prior consultation or agreement with the labor union concerning discipline or dismissal of union members, the necessary procedure must be carried out in accordance with the wording and purpose of the clause. However, the legal effects of “consultation” and “agreement” cannot be determined uniformly from those words alone. In light of the overall structure of the collective agreement and the circumstances in which it was concluded, it is necessary to distinguish between a clause intended only to guarantee the labor union an opportunity to present its views and one that actually requires the union’s prior consent or concurrence. In the latter case, disciplinary action taken without prior agreement may, in principle, be invalid. An exception may be recognized, however, where the labor union has waived its right to agreement or has abused that right in violation of the principle of good faith.[11]