Unfair Dismissal in Korea: How to Check Whether Your Termination Is Illegal

What Is Unfair Dismissal (부당해고)?

Article 23(1) of the Labor Standards Act (근로기준법 제23조 제1항) provides: "An employer shall not dismiss, lay off, suspend, transfer, reduce the wages of, or take other punitive measures against a worker without justifiable cause." In other words, for a dismissal to be valid it must satisfy both substantive justification and procedural justification. If either is lacking, the dismissal may be ruled unfair.

Note for foreign workers: Your employment contract may set terms above the statutory minimum, but it cannot fall below the protections described here.

Substantive Justification – There Must Be a "Reason"

Justifiable grounds for dismissal fall into three main categories.

1. Disciplinary dismissal (징계해고): Dismissal due to a cause attributable to the worker (e.g., neglect of duties, embezzlement, sexual harassment). The misconduct must be serious enough that the employment relationship can no longer reasonably be maintained. The Supreme Court applies the standard of "a degree that makes it socially unacceptable to continue the employment relationship" (Supreme Court Case 2002다62432, etc.).

2. Ordinary dismissal (통상해고): Dismissal for reasons not attributable to the worker, such as insufficient capability or deteriorating health. A key issue is whether the employer first made efforts to avoid dismissal through reassignment, training, or similar measures.

3. Managerial dismissal / Redundancy (경영상 해고 / 정리해고): Under Article 24 of the Labor Standards Act (근로기준법 제24조), all four of the following requirements must be met: ① urgent managerial necessity, ② efforts to avoid dismissal, ③ rational and fair selection of those to be dismissed, and ④ prior consultation with the workers' representative at least 50 days in advance.

Procedural Justification – The "Method" Must Also Be Followed

Even where substantive grounds exist, failure to follow proper procedure renders a dismissal unfair.

• Written notice obligation: Article 27 of the Labor Standards Act (근로기준법 제27조) requires that the reason for dismissal and the date of dismissal be notified in writing. Verbal dismissal or notification by text message alone has no legal effect.
• Advance notice of dismissal (해고예고): The employer must give 30 days' advance notice, or, if dismissal is immediate, pay 30 days' ordinary wages as an advance-notice allowance (해고예고수당) under Article 26 (제26조). Exceptions apply, for example to workers employed for less than 3 months.
• Disciplinary procedure: If the rules of employment (취업규칙) or a collective agreement (단체협약) prescribe steps such as convening a disciplinary committee or granting the worker an opportunity to present their case (소명 기회), those steps must be followed. A dismissal carried out without giving the worker an opportunity to respond may be void for procedural violation.

How to File for Unfair Dismissal Relief

If you have been unfairly dismissed, two avenues are available.

• Application for relief to the Labor Relations Commission (노동위원회 구제 신청): File with the Regional Labor Relations Commission within 3 months of the date of dismissal. The Commission may order reinstatement to the original position or payment of wages equivalent to the period of dismissal (back pay). If you do not wish to be reinstated, you may instead request a monetary compensation order (금전보상명령).
• Civil lawsuit (해고무효확인 소송): File a lawsuit in court seeking confirmation that the dismissal is void and claiming unpaid wages. The statute of limitations is 3 years.

Important for workplaces with fewer than 5 employees: Workplaces with fewer than 5 full-time workers are exempt from Article 23 (prohibition of unfair dismissal). However, the written notice obligation (Article 27) and the advance-notice requirement (Article 26) do still apply.

Check Your Rights on Bylaw (바이로)

When dismissed, you should also verify that your severance pay (퇴직금) has been correctly settled. Use the Bylaw (workbylaw.com) severance pay calculator to instantly calculate your severance based on average wages. You can also use the AI search feature to quickly find unfair dismissal standards applicable to your situation, or use the complaint-drafting assistant to prepare documents for submission to the Labor Relations Commission.

This article is for informational purposes only and does not constitute legal advice. For specific cases, consult a certified labor attorney (노무사) or lawyer.