(1) Scope of application

Remedy request for unfair dismissal, etc. by the LSA applies to all companies or workplaces in which five workers or more are ordinarily employed. However, this law does not apply to any company or workplace in which only the employer's relatives living in the same household are engaged, nor to domestic workers hired for house work (LSA, Article 11, and Enforcement Decree of the Same Act, Article 7).
Ordinarily means on average and should be decided by objective social norms. Therefore, although sometimes the number of workers is below five, if it is over five on average for a certain period (i.e. for one month immediately before the reason for law application arises), the number of the workers employed is ordinarily over five. The number of the workers includes both of the workers: those who continue to work at the designated workplace and whose status is protected by the LSA, and daily workers who are hired temporarily according to the situation of the company. Also, business means an organization in which every part is closely operated while achieving a managerial unity (Supreme Court, 10/12/1993, 93Da18365), and includes both corporate bodies and private entities, regardless of its purpose or industry.
In the case of central or regional government agencies, however, the LSA is applied irrespective of the number of workers hired ordinarily. Namely, the LSA is applied even if there is only one worker who is not a public official (LSA, Article 12).

(2) Adjudication Committee

Matters like unfair dismissal remedy, and so forth, are handled by the Adjudication Committee, one of the sectoral committees of the LRC, and the Adjudication Committee consists of three public interest members in charge of adjudication, who are appointed by the chairperson of the LRC (LRCA, Article 15).

(3) Justifiability of dismissal and other disciplinary measures

1) Justifiable reasons of disciplinary dismissal, etc.

Article 23, Paragraph 1 of the LSA stipulates that an employer shall not, without a just reason, dismiss, suspend, or transfer a worker, reduce his/her wages, or take other punitive measures against him/her. However, since the LSA does not clarify what is a just reason, it is supplemented by legal precedents and theories.

2) Procedural legitimacy

Dismissal should be legitimate not only in reason but also procedurally. As dismissal is an unfavorable disposition unilaterally made by an employer, it is necessary to protect workers from it, prevent dismissal-related disputes in advance and smoothly resolve disputes by clarifying the reasons for dismissal. In other words, the procedural legitimacy of dismissal is of significant importance as it can alleviate disadvantage which a worker will stand even under the circumstance that the dismissal is deemed legitimate and it can also defuse a situation of dispute which might occur in the future in an expedited and clarified manner.

3) Statutory limitation on dismissal, etc.
- Prohibition of discriminatory dismissal, etc.
An employer shall neither discriminate against workers on the basis of gender, nationality, religion, or social status (LSA, Article 6). Accordingly, if an employer carries out a discriminatory dismissal, etc., it may be nullified as not having a just cause. In addition, no employer shall discriminate workers on the basis of gender in retirement age, retirement, and dismissal

prohibition of disadvantageous treatment
Workers may report to the Minister of Employment and Labor or a labor inspector if any violation of the LSA occurs at a company or workplace, and an employer shall not dismiss or treat workers unfairly for making such a report (LSA, Article 104). An employer shall not take a measure of dismissal or other unfavorable treatment against fixed-term workers or part-time workers on the grounds: (1) refusal of an employer’s unreasonable demand for overtime, (2) request for redress of the discriminatory treatment to the LRC, attendance at the LRC and making a statement, and request for review or filing an administrative litigation, (3) report on the employer’s failure to fulfill a remedy order of the LRC, (4) notification to the authorities, etc. (FPWPA, Article 16). A dispatching employer and a user employer shall not take a measure of dismissal or other unfavorable treatment on the reason that a dispatch worker filed a request for redress of discriminatory treatment to the LRC, attended the LRC and made a statement, requested a review or filed an administrative litigation, or reported his/her employer’s non-compliance of a remedy order of the LRC, etc. (TAWPA, Article 21-3).

Restrictions on the date of dismissal
An employer shall not dismiss a worker during a period of suspension for medical treatment of an occupational injury or disease and within 30 days immediately thereafter, and any woman before and after childbirth shall not be dismissed during a period of maternity leave as prescribed by this Act and for 30 days immediately thereafter. This shall not apply where the employer has paid compensation in full in a single payment as provided for under Article 84 or where the employer may not continue to conduct his/her business (LSA, Article 23, Para. 2).

(4) Adjudication procedures

When a remedy request is filed to an RLRC, a hearing and an adjudication meeting are held after checking the eligibility of the claimant and verifying facts. After adjudication is awarded, a written adjudication is served. When either party concerned does not comply to the adjudication by an RLRC, the concerned party can file a review to the NLRC and when they are noncompliant with the adjudication by the NLRC, they can file a lawsuit to the court.

(1) Type of unfair labor practices

1) Disadvantageous treatment
Disadvantageous treatment is composed of two subcategories: ordinary disadvantageous treatment and acts of retaliation. Article 81, Sub-paragraph 1 of TULRAA defines ordinary disadvantageous treatments as “dismissal or disadvantageous treatment of a worker on grounds that he/she has joined or intends to join a labor union, or has attempted to organize a labor union, or has performed any other lawful act for the operation of a labor union”. Sub-paragraph 5 of Article 81 of the Act says that acts of retaliation are “dismissal of workers or acts against their interests on the ground that they have participated in justifiable collective activities, or that they reported to or testified before the LRC that the employer has violated the provisions of this Article, or that they have presented evidence to the relevant authorities.”

2) Unfair employment contract
Article 81, Sub-paragraph 2 of TULRAA defines unfair employment contract or yellow dog contract, as an “act of employing a worker on the condition that he/she will not join, or will withdraw from or join a particular labor union”. At the same time, the same Sub-paragraph recognizes the effect of union shop agreement, saying that “if a labor union represents two-thirds or more of the workers working in the workplace, a conclusion of a collective agreement under which a person is employed on condition that he/she should join the labor union shall be allowed as an exceptional case”. In other words, union shop agreement is prohibited in principle as an unfair employment contract but the provision stipulates that it can be recognized exceptionally in this case. The conditional clause attached to the above-mentioned Sub-paragraph, which allows union shop agreement of the compulsory unionization, was problematic as it might violate the Constitution protecting the individual worker’s freedom not to be unionized. The Constitutional Court recognized pessimistic freedom of association (worker’s right not to join a union) only by Article 10, which guarantees all citizens freedom to pursue happiness, or Article 21, Paragraph 1 of the Constitution, which guarantees freedom of assembly and association, but not by Article 33, Paragraph 1, which assures three basic workers’ rights. In this case, worker’s freedom not to join a union and labor union’s rights to organize proactively (compulsory unionization) conflict with each other. However, proactive freedom of association for workers is more meaningful than worker’s freedom not to join a union and since labor union’s compulsory unionization right has the nature of the right to exist (social rights) that modifies the right to freedom, it is guaranteed as having more special value than individual worker’s right to freedom. In this regard, the Constitutional Court ruled that granting labor unions the compulsory unionization right does not constitute violation of the Constitution, as it is not considered to infringe on the intrinsic nature of worker’s freedom not to join a union (Constitutional Court, 11/24/2005, 2002Heonba95·96 and 2003Heonba9 combined). In a workplace which has union shop agreement, if a worker does not join the union or withdraws from it, the employer has to dismiss the worker in accordance with the CBA (union shop agreement) (Supreme Court, 03/24/1998, 96Nu16070). However, Article 81, Sub-paragraph 2 of TULRAA stipulates in the provisional clause that in case when a worker is expelled from the labor union, or organizes a new labor union or joins another union after withdrawing from the existing one, the employer may not take disadvantageous measures to the employment status of the worker (i.e. dismissal). Until January 1, 2010, the provision stipulated only that “an employer may not take any measure disadvantageous to the status of a worker on the grounds that the worker is expelled from the labor union concerned”, but as union pluralism has been allowed since that date, “or organizes a new labor union or joins another union after withdrawing from the existing one” has been added in the provision.

3) Refusal or delay of collective bargaining
Article 81, Sub-paragraph 3 of TULRAA defines it as “refusal or delay of the implementation of a collective agreement or other collective bargaining with the representative of a labor union or with a person authorized by the labor union, without any justifiable reason”.

4) Domination or interference
According to Article 81, Sub-paragraph 4 of TULRAA, it means “domination of or interference in the organization or operation of a labor union by workers, and payment of wages to the full-time officers of a labor union or financial support for the operation of a labor union”. However, in the same provision, it is articulated that the employer may allow union officials paid time off to conduct union duties without wage cut and provide a minimum size union office, despite the provision of unfair labor practices. Article 24, Paragraph 2 of the Act stipulates that full-time union officials should not be remunerated in any way by the employer during the exclusive involvement in union duties. However, a provisional clause attached to Article 81, Sub-paragraph 4 stipulates that “the employer may allow workers to do activities pursuant to Article 24, Paragraph 4 of the Act, and it shall be allowed as an exception that the employer contributes funds for the welfare of workers, or for prevention and relief of economic misfortunes or other disasters, and that the employer provides a minimum size labor union office.”

(2) Remedy request for unfair labor practices

1) Complainan
A worker or labor union whose right has been infringed by an unfair labor practice of the employer may request a remedy to the LRC (TULRAA, Article 82, Para. 1). In this case, a worker, who requests a remedy for an unfair labor practice, is a worker defined by TULRAA, who is, like a worker defined by the LSA, the person that provides “his/her labor in a subordinate relationship to the employer” (Supreme Court, 05/25/1993, 90Nu1731). In the case of non-enterprise level labor unions such as industrial unions, occupational unions, or regional unions, the eligibility of a worker is determined based on “the necessity to guarantee three labor rights”. Therefore, those who are seeking jobs and those who are temporarily in unemployment are also included in the workers’ definition stipulated by TULRAA (Supreme Court, 02/27/2004, 2001Du8568). A labor union here means a labor union that is established and registered according to Article 10 and Article 12 of TULRAA and unregistered unions due to failing to meet the formal requirements are not included in this category, even though they have substantial entity (TULRAA, Article 7, Para. 1). Nonetheless, members of unregistered unions can still file a remedy for disadvantageous treatment by the employer or unfair employment contract in the name of an individual worker (TULRAA, Article 7, Para. 2). Apart from the remedy request by an individual worker, a labor union has its own right to request a remedy for unfair labor practices. In this case, a labor union does not subrogate or substitute a worker in requesting a remedy but files a remedy request on its own against unfair labor practices that give a disadvantage to a worker who wants to join the union (Supreme Court 09/11/2008, 2007Du19249).

2) Period of limitation
A remedy request for unfair labor practices must be filed within three months from the date the unfair labor practice by the employer occurred. In the case of a continuous practice, the limitation period is counted from the date when the unfair labor practice has ended (TULRAA, Article 82, Paragraph 2). A continuous practice means an act that is repeated with an intention for the same unfair labor practice and does not mean an act committed by the employer stays in effect. (Supreme Court, 03/23/1993, 92Nu15406).

(3) review on unfair labor practices

1) Disadvantageous treatment
Those who can request a remedy for disadvantageous treatment to the LRC are labor unions that are registered according to TULRAA and workers who want to join or have already joined such unions or unregistered unions (TULRAA, Article 7, Paragraph 1 and 2). For a disadvantageous treatment to become an unfair labor practice, a worker should do justifiable union duties including joining a union and the employer must take an action that has some form of disadvantage to the worker for that reason (Supreme Court, 09/10/1996, 95Nu16738). In other words, there must be a “justifiable act to carry out union duties” for the part of the worker and then, the employer must “treat disadvantageously” to the worker for this reason. For a disadvantageous treatment to become an unfair labor practice, there must be an “act that treats a worker disadvantageously”. When a worker is promoted to a position that prohibits union activities, whether or not such a promotion is an unfair labor practice is decided by considering personnel policies and the equity of treatment between the promoted worker and his/her colleagues who joined the company at the same time.

2) Unfair employment contract
Those who can request a remedy for disadvantageous treatment to the LRC are labor unions that are registered according to TULRAA and individual workers, who are forced not to join such unions or unregistered unions, or forced to withdraw from them, or join a specific union on condition for recruitment (TULRAA, Article 7, Paragraphs 1 and 2). However, these cases are hardly found in the actual remedy requests to the LRC.

3) Refusal or delay of collective bargaining
Those who can request a remedy for refusal or delay of collective bargaining, which is an unfair labor practice, to the LRC are labor unions formed in accordance with TULRAA. The employer has to comply with the bargaining request not only by the labor union but also by those who have been given the authority by the union (TULRAA, Article 29, Paragraph 3). This type of unfair labor practice is constituted when the employer refuses collective bargaining or delays the implementation of the CBA without proper reasoning, or when there is no objective and justifiable evidence that the employer participated in the requested bargaining in good faith, or when it is turned out to be unfaithful one, even if the employer believes that there is a justifiable reason to refuse the bargaining request or he/she actually participated in the bargaining (Supreme Court, 05/22/1998, 97Nu8076).

4) Domination or interference
TULRAA stipulates that the employer’s domination of or interference in the organization or operation of a labor union by workers is an unfair labor practice of domination or interference (TULRAA, Article 81, Para. 4). Domination or interference means unfair interventions by the employer in the union organization and operation which should be decided autonomously by workers. Domination refers to the employer’s playing a leading role in the organization of a union or taking the initiative in its operation. Interference refers to the employer’s interfering with the organization and operation of a labor union and affecting its decision making, though not yet reaching the extent of domination. TULRAA stipulates that if the employer pays wages of full-time union officials or assists the union operating expenses, such an act constitute an unfair labor practice of domination or interference (TULRAA, Article 81, Sub-paragraph 4).

5) Burden of proof
There are no specific provisions in labor relations law, which stipulate who bears the burden of proof in regard with the LRC’s remedy procedures for unfair labor practices. According to judicial precedents, when it is not clarified in the law who bears the burden of proof, it must be decided in accordance with the theory on the allocation of legal requirements (Norm Theory by Rosenberg) (Supreme Court, 03/26/2009, 2007Da63102).

(4) Major cases

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(1) Scope of application

Adjudication on discrimination redress applies to all the companies or workplaces ordinarily employing five or more workers for both the FPWPA and TAWPA (FPWPA, Article 3, Para. 1 and TAWPA, Article 21, Para. 4). For the central government and local governments, they are applied regardless of the number of workers they ordinarily employ (FPWPA, Article 3, Para. 3 and TAWPA, Addenda Para. 1, Subpara. 2). However, in the case of the FPWPA, it shall not apply to a company or workplace which employs only relatives living together with their employer, nor to domestic workers (FPWPA, Article 3, Para. 1).

(2) Discrimination Redress Committee (DRC)

The handling of matters related to the redress of discriminatory treatment falls under the authority of the Discrimination Redress Committee, which is one of the sectoral committees of the LRC. The DRC consists of three members appointed by the chairperson of the LRC among the public interest members who are responsible for discrimination redress (LRCA, Article 15, Para. 4).

(3) Discrimination redress procedures

The procedures for discrimination redress are as shown in the below figure and are basically similar to cases of unfair dismissal, etc. or unfair labor practices. However, it is also worth noting that discrimination redress procedures can start upon a notification of the regional employment and labor offices, which is unique in discrimination redress, and there are mediation and arbitration procedures before an official adjudication is made.

(4) Discrimination redress review

When there is a request or notification of discrimination redress to the LRC, the LRC shall decide step by step whether (1) there are comparable workers, (2) the case falls under the area in which discriminatory treatment is prohibited, (3) disadvantageous treatment exists, and (4) there is a justifiable reason, etc.