Hello, this is Attorney Choi Jong-ha from Cheongchul Law Firm.

User discipline is the strongest means of establishing workplace order. However, it should not be abused as much as it is strong, and the validity of the disciplinary action determined should never be denied by the Labor Commission or a court.

However, when it actually comes time to impose a disciplinary action, questions may inevitably arise regarding what procedures need to be followed. Today, I would like to briefly discuss the precautions that should be taken procedurally when disciplining workers in a question-and-answer format.

Q. What happens if the disciplinary procedures are violated?

A. If the disciplinary procedures are violated, the effectiveness of the discipline is denied. That is, no matter how serious the misconduct committed by the worker is, if there is a procedural defect, it will be deemed an unfair disciplinary action. In this regard, the Supreme Court has stated that “if a disciplinary dismissal is executed in violation of the disciplinary procedures, such exercise of disciplinary rights must be regarded as void as it is an act contrary to the principle of justice in procedures, regardless of whether the disciplinary reason is acknowledged” (Supreme Court Decision 94Da3612, April 12, 1994).

Q. What procedures need to be followed?

A. The main principle regarding disciplinary procedures under Korean labor law is that 'the company must adhere to the procedures it has established itself'. For example, if the company specifies in its internal regulations or employment contract that 'the worker must be given the opportunity to explain before discipline is imposed', it must provide the worker with that opportunity. However, if such provisions or practices do not exist, the company is not obliged to give the worker an opportunity to explain.

In this regard, the Supreme Court has clarified this point by stating that “unless there is a provision in the defendant company's collective agreement or work rules mandating prior notice or the opportunity for the employee facing disciplinary action to explain in the disciplinary procedures, it cannot be said that the disciplinary action is invalid even if the defendant did not follow such procedures” (Supreme Court Decision 91Da4775, April 14, 1992).

However, it is necessary to check in advance whether such a provision exists in the work rules. This is because the standard work rules distributed by the Ministry of Employment and Labor include provisions on disciplinary procedures for the 'Personnel Committee'. If the standard work rules were adopted with some modifications without much thought when implementing the work regulations, it may be necessary to obtain a decision from the Personnel Committee before proceeding with discipline.

Q. If there are no disciplinary procedure provisions, can no procedures be followed at all?

A. In principle, yes. However, disciplinary dismissal is an exception. Article 27, Paragraph 1 of the Labor Standards Act states that “an employer must notify the employee of the reason for dismissal and the time of dismissal in written form” and dismissals that violate this are considered void.

At this time, the format or form of the written notice of dismissal can be freely determined. The Supreme Court has also stated regarding this provision that “when an employer notifies the reasons for dismissal, a written document that clearly informs the employee of what the reasons for dismissal are, regardless of the name of the notice of dismissal, is sufficient” (Supreme Court Decision 2021Du36103, July 29, 2021).

When providing such notice, it was generally required to either hand over an actual paper document or send it by registered mail. However, since the Framework Act on Electronic Document and Electronic Transactions stipulates in Article 4-2 that if (1) the content of the electronic document can be viewed and (2) the electronic document is preserved in a form that can be reproduced in the form or state in which it was created, modified, transmitted, received or stored, it is considered written, courts have shown a tendency to recognize emails and KakaoTalk as valid written notices in cases where the employer attempted to provide a paper document but failed due to employee disregard or refusal to receive it.

Cheongchul Law Firm has extensive experience and expertise in various HR issues such as labor relations, personnel management, wages, and dismissals. If you need assistance, feel free to contact us anytime, and we will be a reliable partner for you.