Unfair Dismissal in Korea: Meaning, Requirements & How to Check If Your Firing Was Illegal
What Is Unfair Dismissal?
Unfair dismissal (부당해고) refers to an employer unilaterally terminating an employment relationship without the just cause and proper procedure required by law. Article 23, Paragraph 1 of the Labor Standards Act (근로기준법 제23조 제1항) expressly states: "An employer shall not dismiss, lay off, suspend, transfer, reduce the wages of, or take other punitive action against a worker without justifiable reason." In other words, dismissal is not a free right of the employer — it is a restricted power that may only be exercised when the legally prescribed requirements are met.
What Does a Lawful Dismissal Require?
Courts and the Labor Relations Commission (노동위원회) evaluate the validity of a dismissal along two main axes.
1. Substantive Requirement — Justifiable Reason
A dismissal must be based on a reason serious enough that, by common social standards, continuation of the employment relationship cannot be expected (Supreme Court Decision 2003da63029, among many others). Merely having low performance or a poor relationship with the employer is not sufficient. Specifically recognized grounds include: ▲ a serious violation of workplace rules or conduct regulations; ▲ criminal acts such as embezzlement or breach of fiduciary duty; ▲ prolonged unauthorized absence; ▲ a layoff driven by urgent managerial necessity (when the requirements of Article 24 of the Labor Standards Act (근로기준법 제24조) are met).
2. Procedural Requirement — Written Notice
Article 27 of the Labor Standards Act (근로기준법 제27조) requires that the reason for dismissal and the date of dismissal be notified in writing without exception. A verbal dismissal, a dismissal communicated only by text message, or a notice that omits the reason for dismissal may constitute unfair dismissal on procedural grounds alone. Additionally, an immediate dismissal that violates the advance-notice requirement under Article 26 of the Labor Standards Act (근로기준법 제26조) — i.e., less than 30 days' notice with no payment of advance-notice allowance (해고예고수당) — is also problematic.
Note for foreign workers: Your employment contract may specify additional notice or procedural requirements beyond the statutory minimum. Always check your contract alongside the law.
These Situations Also Constitute Unfair Dismissal
- Coerced voluntary resignation: If a resignation letter is obtained under duress, the act may be treated as a dismissal in substance.
- Disguised dismissal as contract expiration: Refusing to renew a fixed-term worker's contract without reasonable grounds after repeated renewals (see Article 4 of the Act on the Protection of Fixed-Term and Part-Time Workers (기간제법 제4조)).
- Failure to follow disciplinary procedures: A dismissal that skips a disciplinary committee process that is stipulated in the workplace rules.
- Dismissal of specially protected workers: Dismissal of a worker who is pregnant, on maternity leave, or on parental leave, or of a worker receiving medical treatment for a work-related injury (Article 23, Paragraph 2 of the Labor Standards Act (근로기준법 제23조 제2항)).
What Should You Do If You Have Been Unfairly Dismissed?
A worker who has been unfairly dismissed may file a remedy application (구제신청) with the Regional Labor Relations Commission within 3 months of the date of dismissal (Article 28 of the Labor Standards Act (근로기준법 제28조)). The Labor Relations Commission investigates and holds a hearing to determine whether the dismissal was unfair; if it is found to be so, the Commission may order reinstatement to the original position or payment of wages equivalent to the period of dismissal. If you disagree with the Commission's decision, you may appeal to the National Labor Relations Commission (중앙노동위원회) for re-examination, and thereafter pursue administrative litigation.
Note, however, that workplaces with fewer than 5 employees are excluded from the application of Article 23 of the Labor Standards Act, meaning a remedy application to the Labor Relations Commission is not available in such cases.
Check Your Situation on Bylaw (바이로)
When facing unfair dismissal, you should also calculate any unpaid wages and severance pay (퇴직금) at the same time. Use the Bylaw (workbylaw.com) severance pay calculator to quickly compute severance based on average wages, and use the AI search feature to instantly find labor law information tailored to your situation. A complaint-drafting tool is also available, so you can prepare a draft before filing your remedy application with 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.