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Sometimes an employee has already received a disciplinary measure such as suspension or a pay cut, and the company then raises the same issue again and says it will impose discipline once more. Conversely, from the company's side, the same kind of conduct may continue after discipline, so that further discipline becomes necessary. The two situations look similar on the surface but are treated very differently under the law.

This article briefly covers the principle that double discipline is prohibited, then explains where the line falls when repeated conduct is disciplined again, and how a prior disciplinary record may be used in a new disciplinary action.

[Contents]

1. The Rule Against Double Jeopardy Also Applies to Workplace Discipline

2. The Test Is Not "the Same Conduct" but "the Same Facts"

3. Can a Prior Disciplinary Record Be Used Again? — Grounds for Discipline vs. Severity of Discipline

4. Where the Earlier Measure Was Not Discipline, or Was Revoked

5. What to Check First If You Receive a Disciplinary Notice

The Rule Against Double Jeopardy Also Applies to Workplace Discipline

The principle that no one is punished twice for the same matter is known as a rule of criminal trials, but it applies in a similar way to discipline by an employer. Article 23(1) of the Labor Standards Act (근로기준법) provides that an employer may not dismiss, lay off, suspend, transfer, reduce the wages of, or otherwise punish a worker without just cause, and the Supreme Court holds that where an employer imposes double discipline on a worker, the disciplinary action is void as contrary to the principle against double jeopardy or the prohibition of double punishment.

For double discipline to be found, however, three elements must be present. Both the earlier measure and the later measure must be disciplinary actions in their legal nature; the earlier disciplinary action must have become final and effective without being revoked; and the facts charged in the earlier and later disciplinary actions must be identical (Supreme Court Decision 99Du10902, September 29, 2000). In actual disputes, the third element, namely whether the facts charged are the same, is the one most often contested.

The Test Is Not "the Same Conduct" but "the Same Facts"

Take lateness as an example. Suppose an employee was disciplined in August for being late from April through July. If the company later disciplines the employee again for that same April-to-July lateness, it is disposing once more of identical facts for which discipline has already become final, and this is in principle not permitted.

By contrast, if lateness continued from August through October after the discipline, and the company imposes discipline in November for the lateness in that period, the situation is different. The type of conduct is the same, "lateness," but the facts being disciplined are new facts, different from those in the earlier discipline. In that case, separate discipline is possible for each.

In the end, the test is not "is it the same kind of conduct?" but "is the company raising again the very facts it has already disciplined?" That is why how the grounds for discipline are specified matters. You should place the earlier disciplinary notice and the current statement of grounds side by side and check whether the periods, dates and conduct described overlap. If part of the new grounds overlaps with facts already disciplined, double discipline can be argued as to that part.

Where other misconduct that had not come to light at the time of the earlier discipline is discovered later, those facts were not the subject of the earlier discipline and may be disciplined separately. However, imposing discipline once more on facts already disciplined, on the reasoning that "on reflection, a heavier sanction should have been imposed," involves no new facts and is difficult to permit.

Can a Prior Disciplinary Record Be Used Again? — Grounds for Discipline vs. Severity of Discipline

Using facts already disciplined as grounds for discipline in a new action is distinguished from taking into account a prior disciplinary record when deciding the severity of a new action.

The Supreme Court has held that even misconduct not relied on as a ground for discipline in a disciplinary action, such as the person's usual conduct and work performance and misconduct committed before or after the grounds for the disciplinary action in question, may be used as reference material in determining the severity of discipline, as material for choosing the type of discipline (Supreme Court Decision 2001Du10455, May 28, 2002).

Returning to the earlier example, if the company imposes discipline in November for lateness from August through October and reflects in the level of discipline the fact that "the conduct was repeated even after the employee had already been disciplined once for the same problem," that is not double discipline. The subject of the discipline remains the newly occurring facts, and the prior record is used only as a circumstance in setting the level. Conversely, if the facts disciplined in the past are themselves listed again among the grounds for discipline, that becomes a problem.

So when you receive a second disciplinary notice, rather than concluding that it is double discipline simply because a past matter is mentioned, you should look at whether that matter is written as a ground for discipline or is mentioned only as a circumstance bearing on severity.

Where the Earlier Measure Was Not Discipline, or Was Revoked

Double discipline is an issue only when both the earlier and the later measures are discipline. If what the employee received earlier was a measure that does not constitute discipline under the rules of employment, such as a verbal caution or a reassignment of duties, then even if a formal disciplinary procedure is later opened on the same facts, it is not double discipline. In such a case, you should check whether the company's rules of employment list that measure as a type of discipline, rather than relying on what the measure is called.

The same is true where the earlier discipline was revoked. The Supreme Court has held that where an employer itself recognizes an error in the disciplinary procedure, in the existence of the grounds for discipline, or in the severity of discipline, it may revoke the disciplinary action on its own without waiting for a remedy order from the Labor Relations Commission or a court judgment confirming invalidity, and may further impose a new and lawful disciplinary action (Supreme Court Decision 2009Da97611, June 10, 2010). If the company formally revoked the earlier discipline and then imposed discipline again, the argument is not double discipline but whether the procedure, grounds and severity of the new discipline are justified.

What to Check First If You Receive a Disciplinary Notice

• The earlier disciplinary notice — which conduct in which period was stated as the grounds for discipline

• The current statement of grounds — whether the facts stated as grounds overlap with the facts of the earlier discipline and, if so, which part

• How the past matter is mentioned — whether it is listed again as a ground for discipline or mentioned only as a circumstance in setting the level of discipline

• The nature and effect of the earlier measure — whether it was discipline under the rules of employment, and whether the company has revoked it

If you believe the discipline is unfair, you may apply to the Labor Relations Commission for a remedy, and the application must be filed within three months from the date of the unfair dismissal, etc. (Labor Standards Act Article 28). Because the period is short, it is advisable to organize the earlier and current disciplinary materials together right after receiving the notice.

Cheongchul Law Firm directly handles employment disputes, including discipline and dismissal, on behalf of both companies and employees. If you have received a disciplinary notice or are considering re-imposing discipline, please contact us through our consultation booking.

This post is provided for general legal information only and does not constitute legal advice on any specific matter. Outcomes vary depending on the facts of each case, so please consult a qualified professional.