A response to an unfair dismissal remedy application starts from the dismissal notice

A common trap companies fall into in Labor Relations Commission cases is thinking that because the employee did something wrong, the dismissal is naturally justified. When a dismissed employee applies for remedy, the company receives a copy of the application and a request to submit a response, and company heads usually have a lot to say: how long they put up with it, and how the other employees all knew. But the Labor Relations Commission looks at whether that story can be turned into a record.

Three things the company must prove

Whether the grounds for dismissal actually existed, whether those grounds were serious enough to justify dismissal, and whether the required procedures were followed. The company bears the burden of proving just cause for dismissal. The fact that you warned the employee verbally several times is hard to have recognized unless it is preserved in a warning letter or email.

A dismissal takes effect only if its grounds and timing are given in writing (Article 27 of the Labor Standards Act). The response should be written around the grounds stated in the notice. Bringing up new grounds in the response that were not in the notice weakens its persuasiveness, and if the grounds in the notice are too abstract, that itself may be pointed out as a procedural problem.

What to do in the week you receive the copy

• Put the deadline for the response set by the Labor Relations Commission on the calendar
• Check the original dismissal notice and how it was sent (mail, email, messenger)
• Gather the notice of the disciplinary committee, its minutes and records of giving the employee a chance to explain
• Break down the employee's claims item by item and mark which ones you have rebuttal materials for and which you don't

Doing this marking exercise reveals the company's weak points. If the grounds are clear but you skipped the notice convening the disciplinary committee required by the employment rules, the dismissal may be found unfair even if the grounds are sufficient. You need to know your weak points first to decide whether to settle or fight to the end.

In the response, set out in order the background of the case, the facts and evidence for each ground of dismissal, why the disciplinary measure was proportionate, and how the procedures were followed. If you rebut the parts of the employee's claims that are untrue using matching item numbers, it is easier for the commissioners to read both sides' arguments side by side.

If there are 4 or fewer regular employees, the provisions restricting dismissal and on remedy applications do not apply. However, the number of regular employees is calculated by dividing the total number of workers over a set period by the number of operating days, so recount including part-timers.

The hearing and settlement

After the investigator's fact-finding, a hearing is held at which the commissioners question both sides directly. It is a good idea to practice in advance with expected questions so that the answers of the company head or HR manager do not contradict the response. If you number the evidence submitted with the response and indicate in the text which argument each item supports, you can find and point to it immediately at the hearing too.

The Labor Relations Commission may recommend a settlement before issuing its decision, and a settlement reached has the same effect as a judicial settlement (Article 16-3 of the Labor Relations Commission Act). If there are flaws in the procedure, it is worth comparing a monetary settlement rather than waiting for the decision. This is because if a remedy order is not complied with after a finding of unfair dismissal, a non-compliance penalty of up to 30 million won can be imposed repeatedly, up to twice a year (Article 33 of the Labor Standards Act).

If you disagree with the decision, you can apply to the National Labor Relations Commission for review within 10 days of being notified of the written decision (Article 31). The deadline is short, so be sure to note the date you received the decision.