Situations That Clearly Constitute Unfair Dismissal – Key Points to Watch Out For
    • Date2025/03/26 17:41
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    Many employees and employers often ask during consultations, "Could this be considered unfair dismissal?" Since disputes between employees and employers are often intense when cases are brought to the Labor Relations Commission, it can be challenging to provide a clear answer based on limited facts. However, there is one situation that is guaranteed to be ruled as unfair dismissal:
    When the employer fails to comply with the written notice requirement for dismissal. Let’s take a closer look at this important obligation.
    1. What is the Written Notice Requirement for Dismissal?
    When dismissing an employee, the employer must inform them in writing of the:
    ① Reason for dismissal
    ② Date of dismissal
    ③ Notice in physical, written form (paper)
    All three conditions must be met for the written notice to be considered valid under the Labor Standards Act.
    Although this legal requirement seems straightforward, many employers still fail to meet it, which frequently leads to unfair dismissal rulings.
    • The "Date" of Dismissal: The notice must specify a clearly defined dismissal date so that the employee knows exactly when their employment will end.
    • The "Reason" for Dismissal: The notice must contain enough detail for the employee to understand why they are being dismissed.
    In particular, when it comes to disciplinary dismissals, the courts have clarified that "the employer must state the specific facts or misconduct that constitute the grounds for dismissal. Simply listing clauses from the company’s work rules or collective agreements is not sufficient."
    2. Are There Any Exceptions to the Written Notice Requirement?
    Before dismissing an employee, employers must also provide prior notice of dismissal (dismissal notice).
    If the employer has already given the employee a written dismissal notice that specifies both the reason and the date, this notice may fulfill the written notice requirement, and there may be no need to provide a separate dismissal letter.
    Additionally, Article 27 of the Labor Standards Act, which sets forth the written notice requirement, does not apply to workplaces with fewer than five regular employees. Therefore, businesses with fewer than five employees are exempt from this requirement.
    Note: However, even employers with fewer than five employees must still comply with the dismissal notice requirement!
    3. Can Employers Notify Dismissal via Email or Messaging Apps?
    Some people hear that dismissal notices sent via email can be valid and assume that emailing or sending a message on KakaoTalk is sufficient. However, it’s strongly recommended to issue the notice in physical, written form (on paper).
    While the courts have ruled that "not all electronic communications such as emails automatically fail to qualify as valid written notices," it’s important to note that not every dismissal notice sent electronically will be deemed valid.
    In a recent case, the courts ruled that dismissal notices sent via KakaoTalk did not meet the written notice requirement. The court noted that "messages sent via mobile messenger apps lack permanence and accuracy, and therefore caution is required in determining whether such messages fulfill the ‘written form’ requirement under Article 27 of the Labor Standards Act."
    In short, relying on email or messaging apps for dismissal notices is risky. Proving that the written notice requirement has been properly met falls on the employer, so it is strongly recommended that employers follow the formal procedure and issue dismissal notices in physical, written form from the start.
     
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