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Sometimes it only comes to light years after hiring that the education or work history on a résumé was untrue. The employer asks whether it can still dismiss the employee; the employee asks whether dismissal is possible after years of trouble-free work.

This video addresses exactly that question. In short, a false entry does not by itself make a dismissal justified, and where it surfaces late, the work performed and the length of service after hiring are also weighed. Beyond the video, this post also covers a separate route, rescission of the employment contract, and how far its effect reaches.

[Contents]

1. A false entry alone does not justify dismissal

2. Discovered years later – work performed and length of service

3. A route other than dismissal – rescission and its limited retroactivity

4. Understated versus inflated credentials – how the cases have shifted

5. What employers and employees should each check

1. A false entry alone does not justify dismissal

As the video explains, Korean courts do not uphold a dismissal merely because a résumé contained false education or career details. They look at the circumstances as a whole, centering on whether the fact was important enough that the employer would not have hired the person had it known and whether it relates to the actual job. The video also mentions how carefully the employer verified the information at hiring, which in practice may be considered alongside these factors.

Outcomes have differed. Where an employee overstated an actual period of service several times over, the dismissal was held justified (Supreme Court Decision 90Daka23912); where an employee left out a single short job, it was held not to be a valid ground for dismissal (Supreme Court Decision 99Da53865). Those cases are discussed in detail in our column on whether false résumé entries can justify dismissal, so this post focuses on what changes when the falsehood is discovered after time has passed.

2. Discovered years later – work performed and length of service

The Supreme Court has held that, in deciding whether a false entry on education or career is a ground for dismissal, courts must consider not only the circumstances at the time of hiring but also circumstances after hiring, including the following (Supreme Court Decision 2009Du16763, July 5, 2012).

• The nature and duration of the work the employee performed from hiring until dismissal

• Whether the falsely stated education or career interferes with the normal provision of that work

• How the employer came to know of the false entry, the employee's attitude afterwards and the measures the employer took

• The effect on trust between labor and management and among employees, and on stable management and workplace order

This is where discovery years later differs from discovery right after hiring. The more time has passed, the more post-hiring circumstances have accumulated as material for the decision.

• Work performed and length of service – What the employee has done and for how long becomes part of the assessment. It is only one factor among several, however, so long service alone does not mean the false entry no longer matters.

• Whether performance was affected – Courts look at whether the falsified education or career relates to the job and whether it interfered with normal work. If work assigned on the strength of the false career was not properly performed, that may favor the employer; if the work has been carried out without problems, the employee may rely on that.

• How it surfaced and what followed – How the employer found out, how the employee responded and what the employer did are also considered. This is why the response after discovery matters to both sides.

• Trust and workplace order – The effect of the disclosure on trust between labor and management and among employees, and on workplace order, is weighed as well.

That decision concerned an employee who concealed a four-year university degree and applied for a production job, and the employer's policy of not hiring university graduates for production work was taken into account. In the end, neither “years have passed, so it is fine” nor “there was a falsehood, so dismissal is possible at any time” holds as stated.

3. A route other than dismissal – rescission and its limited retroactivity

Dismissal is not the only tool an employer may consider. The Supreme Court has held that an employment contract is a contract under private law, so where the declaration of intent at the time of contracting is affected by a ground for rescission such as fraud (Civil Act Article 110(1)), the employment contract itself may be rescinded (Supreme Court Decision 2013Da25194, 25200, December 22, 2017).

In that case an employee was hired as manager of a clothing store in a department store. Part of the department-store experience on the résumé was false, and the experience that did exist amounted to only one month but was stated as a longer period. The employer rescinded the contract on the ground of deception, and the Court found that the contract had been validly rescinded.

Two points need to be read together, however.

First, rescission is not always accepted. The decision added a proviso: unless there are special circumstances showing that, in light of the degree of the defect or the length of service, the defect has been cured or rescission would be unjust. The lighter the falsehood or the longer the service, the more room the employee has to argue that the defect has been cured or that rescission is unjust. This is the part that bears directly on discovery years later. That said, the case law does not set any period after which a defect is cured, so length of service alone cannot settle the outcome.

Second, rescission does not reach back into the past. The general rule of the Civil Act is that a rescinded juristic act is deemed void from the beginning (Civil Act Article 141). For employment contracts, however, the Court held that the legal relationship formed before rescission on the basis of labor already provided does not lose its effect, and that the contract ceases to have effect only for the future, from the declaration of rescission. Accordingly, even if the employer rescinds the contract, it cannot recover wages already paid for the work performed.

To sum up, dismissal asks whether the employment relationship can no longer be continued under generally accepted social norms, while rescission asks whether the declaration of intent at the time of contracting was affected by a ground for rescission. The starting points differ. In both, however, the degree of the falsehood and the length of service are considered.

4. Understated versus inflated credentials – how the cases have shifted

Another point the video raises is the background against which the case law developed. Legal judgments are never entirely free from their historical context. In the past, many decisions concerned university students or graduates who understated their education as high-school level in order to be hired, whereas recent disputes mostly concern inflated education or careers.

Decision 2009Du16763 above is of the understated type, and Decision 2013Da25194, 25200 is of the inflated type. As the video explains, it is difficult to carry the reasoning of the understatement cases over to the inflation cases as it stands. Rather than predicting one's own case from the outcome of older decisions, the content and degree of the falsehood, its relevance to the job and the circumstances of hiring should be examined case by case.

5. What employers and employees should each check

Employers

• At hiring – Obtain, check and keep supporting documents such as graduation and employment certificates. How carefully the employer verified the information may be considered in a dispute, so it helps to keep a record of what was checked.

• Right after discovery – Confirm the content and degree of the falsehood with objective materials and give the employee an opportunity to explain.

• Check the rules of employment – Confirm whether false résumé entries are listed as a disciplinary ground and how the disciplinary procedure is set out, and follow it.

• Choose the measure – Dismissal and rescission differ in requirements and effects. Review which is appropriate in light of the degree of the falsehood and the length of service, bearing in mind that wages already paid cannot be recovered even after rescission.

Employees

• State only facts – As the video stresses, not writing anything false is the surest way to avoid unnecessary disputes later.

• If the issue is raised – Organize materials showing how far the entry affected the hiring decision and the job, and what work you have done and for how long since joining.

• Identify the notice – Check whether the employer's notice is a dismissal or a rescission of the contract, and whether the disciplinary procedure in the rules of employment was followed.

Cheongchul Law Firm handles employment matters from hiring-stage checks to disputes over discipline, dismissal and rescission of employment contracts. Because the outcome of a false-résumé issue depends on the content and degree of the falsehood, the length of service and the steps taken after discovery, it is best to have the matter reviewed before giving notice of dismissal or rescission, or right after receiving one.

For a consultation, please call 02-6959-9936 or use our consultation request page.

This post is provided for general legal information and is not legal advice on any particular matter. Please consult an attorney regarding your specific case.