Unfair Dismissal in Korea: Complete Guide to Filing a Remedy Claim – Foreign Workers

Unfair Dismissal in Korea: Complete Guide to Filing a Remedy Claim

What Is Unfair Dismissal (부당해고)?

Unfair dismissal (부당해고) occurs when an employer dismisses a worker without just cause, or when there is just cause but the employer fails to follow the legally required procedure. Article 23 of the Labor Standards Act (근로기준법 제23조) explicitly states: "An employer shall not dismiss a worker without just cause."

Not only dismissals lacking just cause, but also cases where the reason and timing of dismissal are not notified in writing (Article 27 of the Labor Standards Act, 제27조) constitute unfair dismissal as a procedural violation. In other words, a verbal notice alone — such as "Don't come in anymore" — is itself unlawful.

Note for foreign workers: Your employment contract may set terms beyond the statutory minimum, but the protections described here are the legal floor guaranteed by Korean law.

Requirements for Filing a Remedy Claim

To file a remedy claim (구제신청), the following requirements must be met:

  1. Worker status: You must qualify as a worker under the Labor Standards Act. Workplaces with fewer than 5 employees are excluded from the unfair dismissal remedy claim system; however, the obligation to notify dismissal in writing (Article 27) applies even to workplaces with fewer than 5 employees.
  2. At least 3 months of continuous employment: Workers with fewer than 3 months of continuous service — including any probationary period — may have limited protection under the dismissal restriction provisions.
  3. Filing deadline: A remedy claim must be submitted to the Regional Labor Relations Commission within 3 months of the date of dismissal (Article 28 of the Labor Standards Act, 제28조). Claims filed after this deadline are in principle dismissed without review.

Remedy Claim Procedure at a Glance

  1. File a remedy claim with the Regional Labor Relations Commission (지방노동위원회) – Submit the application form to the Regional Labor Relations Commission with jurisdiction over the workplace's location. Online filing is also available through the Labor Relations Commission electronic civil petition system.
  2. Investigation and hearing – A Labor Relations Commission investigator examines the facts, and both the worker and the employer appear for a hearing.
  3. Decision – If unfair dismissal is recognized, a reinstatement order (복직 명령) or a monetary compensation order (금전보상 명령) is issued.
  4. Appeal to the National Labor Relations Commission (중앙노동위원회) – If either party disagrees with the Regional Labor Relations Commission's decision, a request for review (재심) may be filed within 10 days.
  5. Administrative litigation – If either party disagrees with the review decision, an action may be brought before the Administrative Court (행정법원).

Reinstatement vs. Monetary Compensation: Which Should You Choose?

If the Labor Relations Commission recognizes unfair dismissal, the worker may receive reinstatement to the original position (원직 복직) along with back pay equivalent to wages not received during the period of dismissal. If reinstatement is realistically difficult, the worker may request a monetary compensation order (금전보상 명령), in which case compensation of at least the equivalent of wages for the dismissal period is awarded (Article 30, Paragraph 3 of the Labor Standards Act, 근로기준법 제30조 제3항).

The Supreme Court has held that "income earned from another job during the period of unfair dismissal may be deducted as interim earnings" (Supreme Court Decision 2020다254846, 대법원 2020다254846). Therefore, whether you take other employment during the remedy claim process is also a matter of strategic consideration.

Evidence Collection Is Critical

Before filing a remedy claim, make sure to gather the following evidence:

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If you have been unfairly dismissed, you should also verify that your severance pay (퇴직금) has been correctly calculated. The Bylaw Severance Pay Calculator lets you instantly calculate severance pay based on your average wage. You can also use Bylaw's AI Labor Law Search and Complaint Drafting Assistant to quickly prepare a draft remedy claim application.

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