Written Notice of Dismissal
In practice, it is often a problem of how, and how specifically employers should notify the reason of dismissal in order to dismiss an employees.
Should there be the lack of procedural justice, the dismissal shall be regarded an invalid according to the provisions of the Labor Standards Act.
Relevant statutes and interpretations
To improve the rights and interests of workers, Article 27 paraphrase 1 of the Labor Standards Act("LSA") stipulates that an employer must notify the reason of dismissal and the timing of dismissal in written notice, in order to fire an employee. According to paraphrase 2 of the same Article, a dismissal without such written notice is not valid.
Accordingly, when an employer dismisses an employee, the reason for dismissal and the timing of dismissal must be specified in writing. However, in practice, many companies only mention the grounds of dismissal, or although they provide certain reasons, the contents of the provisions are abstract and abbreviated. Since the LSA does not specifically stipulate the degree or specificity of written notice of reasons of dismissal, there are several disputes over complying Article 27 of the LSA.
The Court Decisions
The Supreme Court found that the Article 27 of LSA aims to ensure that employers must be careful in dismissing employees through written notice of reasons of dismissal, and clarify the existence, timing, and reason of dismissal, so that ex-post disputes over them can be resolved appropriately and harmoniously, enabling the employees to take appropriate actions. When the employer notifies the reason of dismissal in writing, it is necessary to make employees known the reason of dismissal in detail, especially in the case of disciplinary dismissal, and it is considered not sufficient to list only the articles of collective agreement or employment rules violated by the disciplinary person(Supreme Court Decision 2011Da42324 Decided October 27, 2011).
In particular, the Supreme Court found that in the case of disciplinary dismissal, even if the reason for dismissal notified in writing under Article 27 of the LSA is abbreviated or somewhat unclear, it can be justify by being specified and confirmed through the calling process of dismissal(Supreme Court Decision 2021Du50642 Decided January 14, 2022). In this recent case, the court found that even if the person who was fired knew the reason of dismissal and could respond to it, if the employer did not write down the reason of dismissal, it would be a violation of Article 27 of the LSA.
Implications and Recommendations
Unlike other types of disciplinary action such as suspension or salary reduction, the LSA specifically stipulates the method and content of notification of dismissal. This is because dismissal considered to be a significant personnel management measure that directly affects working relationships. Therefore, it is desirable for the employer to specify the reasons of dismissal as specific and practical as possible in order to guarantee the employee's right to defend the dismissal notice conforming the legislative purpose of Article 27 of the LSA.
InterLEX has experience in advising on disciplinary cases such as dismissal of various types with extensive expertise and know-how in various areas of personnel management. Should you have any questions about the legitimacy of disciplinary action such as dismissal, please contact InterLEX for further assistance.