Dismissal in Korea
What Employers Need to Know Before Terminating an Employee
Can an Employer Dismiss an Employee in Korea?
Yes, but only if there is justifiable cause for dismissal.
Under the Labor Standards Act, an employer may not dismiss an employee without justifiable cause. Although the Act does not define justifiable cause in detail, the specific standards have been developed through Supreme Court precedents. In general, dismissal is justified only where the circumstances are sufficiently serious that, in light of social norms, the employment relationship can no longer reasonably be expected to continue.
For a dismissal to be lawful, three key requirements must be considered: grounds, procedures, and proportionality. The employer must have sufficient grounds for dismissal, comply with applicable statutory and internal procedures, and be able to justify dismissal as a proportionate measure in light of the circumstances.
All three requirements are important. For example, failure to comply with a mandatory statutory requirement, such as the written notice requirement, can invalidate a dismissal regardless of how strong the substantive grounds for dismissal are.
Given the high threshold for dismissal under Korean law, whether a dismissal is justified must be assessed carefully on a case-by-case basis before termination.
Types of Dismissal Under Korean Law
Dismissal refers to the unilateral termination of the employment relationship by the employer against the employee’s will. Under Korean labor law, dismissal can be broadly categorized into three types: disciplinary dismissal, ordinary dismissal, and dismissal for managerial reasons (redundancy dismissal).
1. Disciplinary Dismissal (징계해고)
When Misconduct Disrupts Workplace Order
Disciplinary dismissal is the most severe form of disciplinary action. It is imposed as a sanction for conduct that violates workplace rules, with the aim of establishing and maintaining order within the company. In Korea, the majority of dismissals imposed by employers fall under this category.
For a disciplinary dismissal to be considered fair, it must be justified in terms of its grounds, the procedure followed, and proportionality. For further details, please see our Disciplinary Action in Korea page.
2. Ordinary Dismissal (통상해고)
When Work Cannot Reasonably Continue
Ordinary dismissal refers to termination based on circumstances in which an employee is unable to fulfill the essential obligations under the employment contract, to the extent that the employment relationship can no longer reasonably be maintained. This type of dismissal is distinct from disciplinary dismissal, which is imposed as a sanction for misconduct or violations of workplace rules.
Commonly recognized grounds for ordinary dismissal include cases where an employee is unable to perform their duties due to illness, injury, or impairment; where the employee’s ability or performance is seriously deficient to the extent that they are unable to adequately perform their duties; or where a license or qualification essential to the position has been revoked. Providing false information during the hiring process or prolonged or repeated unauthorized absences may also constitute grounds for ordinary dismissal.
In practice, ordinary dismissal is difficult to justify. The Supreme Court has developed detailed criteria through case law for assessing whether an ordinary dismissal is justified, depending on the grounds involved.
For example, in cases involving physical impairment, relevant factors include the circumstances under which the impairment arose, the period of medical treatment, the degree of loss of work capacity, the nature and duties of the position, whether other suitable duties are available, and whether the employer has made reasonable efforts to adjust or reassign the employee’s duties.
Dismissal based on poor performance is also difficult to justify. Employers are generally expected to demonstrate that the performance evaluation was based on objective criteria and that poor performance persisted over a reasonable period. Before pursuing dismissal, employers should also be able to show that the employee was given reasonable opportunities to improve, such as through training, reassignment, or a performance improvement plan (PIP), and that sufficient improvement was unlikely despite those opportunities.
3. Dismissal for Managerial Reasons (Redundancy Dismissal) (경영상 해고)
When Business Necessity Requires Workforce Reduction
Dismissal for managerial reasons is subject to separate and particularly strict statutory requirements, including urgent managerial necessity and requirements concerning efforts to avoid dismissal and fair selection of employees.
Please see our Redundancy Dismissal in Korea page.
What Procedures Must an Employer Follow When Dismissing an Employee?
Having sufficient grounds for dismissal is not enough. Employers must also comply with applicable procedural requirements. Two particularly important statutory requirements concern advance notice of dismissal and written notice of dismissal.
1. 30 Days' Advance Notice of Dismissal
An employer must generally provide at least 30 days’ advance notice of dismissal. If the employer does not provide such notice, it must pay at least 30 days’ ordinary wages in lieu of notice.
Certain statutory exceptions apply, including where the employee has been employed continuously for less than three months. Failure to provide the required advance notice may result in criminal liability, but does not itself invalidate the dismissal.
2. Written Notice of Dismissal
A dismissal must be given in writing, specifying both the reason for dismissal and the effective date.
Unlike the 30-day advance notice requirement, failure to comply with the written notice requirement affects the validity of the dismissal itself. A dismissal that is not properly notified in writing is invalid regardless of how strong the substantive grounds for dismissal may be.
The written notice must also state the concrete facts or specific misconduct constituting the grounds for dismissal with sufficient specificity for the employee to understand why the employment is being terminated.
3. Contractual and Internal Procedures
In addition to statutory requirements, employers must comply with any dismissal procedures set out in the employment contract, rules of employment, collective agreements, or other applicable internal rules. These may include, for example, convening a disciplinary committee, giving the employee an opportunity to respond, or following specific notice or decision-making procedures.
Failure to follow a required contractual or internal procedure may render the dismissal unfair even where there are otherwise sufficient grounds for dismissal.
What If an Employee Challenges the Dismissal?
An employee who believes a dismissal was unfair may challenge it before the Labor Relations Commission (LRC) or through civil litigation. If the dismissal is found to be unfair, the employee may generally be entitled to reinstatement and back pay.
For further information on unfair dismissal claims and LRC procedures, please see our Unfair Dismissal in Korea page.
Employer Takeaways
Dismissal is one of the most important and sensitive areas of HR management. In Korea, where legal protections against dismissal are particularly strong, employers should assess not only whether there are sufficient grounds for termination, but also whether procedural requirements have been satisfied and dismissal is proportionate to the circumstances.
For assistance with dismissal-related compliance under Korean labor law, please contact us.
What Employers Need to Know Before Terminating an Employee
Yes, but only if there is justifiable cause for dismissal.
Under the Labor Standards Act, an employer may not dismiss an employee without justifiable cause. Although the Act does not define justifiable cause in detail, the specific standards have been developed through Supreme Court precedents. In general, dismissal is justified only where the circumstances are sufficiently serious that, in light of social norms, the employment relationship can no longer reasonably be expected to continue.
For a dismissal to be lawful, three key requirements must be considered: grounds, procedures, and proportionality. The employer must have sufficient grounds for dismissal, comply with applicable statutory and internal procedures, and be able to justify dismissal as a proportionate measure in light of the circumstances.
All three requirements are important. For example, failure to comply with a mandatory statutory requirement, such as the written notice requirement, can invalidate a dismissal regardless of how strong the substantive grounds for dismissal are.
Given the high threshold for dismissal under Korean law, whether a dismissal is justified must be assessed carefully on a case-by-case basis before termination.
Dismissal refers to the unilateral termination of the employment relationship by the employer against the employee’s will. Under Korean labor law, dismissal can be broadly categorized into three types: disciplinary dismissal, ordinary dismissal, and dismissal for managerial reasons (redundancy dismissal).
When Misconduct Disrupts Workplace Order
Disciplinary dismissal is the most severe form of disciplinary action. It is imposed as a sanction for conduct that violates workplace rules, with the aim of establishing and maintaining order within the company. In Korea, the majority of dismissals imposed by employers fall under this category.
For a disciplinary dismissal to be considered fair, it must be justified in terms of its grounds, the procedure followed, and proportionality. For further details, please see our Disciplinary Action in Korea page.
When Work Cannot Reasonably Continue
Ordinary dismissal refers to termination based on circumstances in which an employee is unable to fulfill the essential obligations under the employment contract, to the extent that the employment relationship can no longer reasonably be maintained. This type of dismissal is distinct from disciplinary dismissal, which is imposed as a sanction for misconduct or violations of workplace rules.
Commonly recognized grounds for ordinary dismissal include cases where an employee is unable to perform their duties due to illness, injury, or impairment; where the employee’s ability or performance is seriously deficient to the extent that they are unable to adequately perform their duties; or where a license or qualification essential to the position has been revoked. Providing false information during the hiring process or prolonged or repeated unauthorized absences may also constitute grounds for ordinary dismissal.
In practice, ordinary dismissal is difficult to justify. The Supreme Court has developed detailed criteria through case law for assessing whether an ordinary dismissal is justified, depending on the grounds involved.
For example, in cases involving physical impairment, relevant factors include the circumstances under which the impairment arose, the period of medical treatment, the degree of loss of work capacity, the nature and duties of the position, whether other suitable duties are available, and whether the employer has made reasonable efforts to adjust or reassign the employee’s duties.
Dismissal based on poor performance is also difficult to justify. Employers are generally expected to demonstrate that the performance evaluation was based on objective criteria and that poor performance persisted over a reasonable period. Before pursuing dismissal, employers should also be able to show that the employee was given reasonable opportunities to improve, such as through training, reassignment, or a performance improvement plan (PIP), and that sufficient improvement was unlikely despite those opportunities.
When Business Necessity Requires Workforce Reduction
Dismissal for managerial reasons is subject to separate and particularly strict statutory requirements, including urgent managerial necessity and requirements concerning efforts to avoid dismissal and fair selection of employees.
Please see our Redundancy Dismissal in Korea page.
Having sufficient grounds for dismissal is not enough. Employers must also comply with applicable procedural requirements. Two particularly important statutory requirements concern advance notice of dismissal and written notice of dismissal.
An employer must generally provide at least 30 days’ advance notice of dismissal. If the employer does not provide such notice, it must pay at least 30 days’ ordinary wages in lieu of notice.
Certain statutory exceptions apply, including where the employee has been employed continuously for less than three months. Failure to provide the required advance notice may result in criminal liability, but does not itself invalidate the dismissal.
A dismissal must be given in writing, specifying both the reason for dismissal and the effective date.
Unlike the 30-day advance notice requirement, failure to comply with the written notice requirement affects the validity of the dismissal itself. A dismissal that is not properly notified in writing is invalid regardless of how strong the substantive grounds for dismissal may be.
The written notice must also state the concrete facts or specific misconduct constituting the grounds for dismissal with sufficient specificity for the employee to understand why the employment is being terminated.
In addition to statutory requirements, employers must comply with any dismissal procedures set out in the employment contract, rules of employment, collective agreement, or other applicable internal rules. These may include, for example, convening a disciplinary committee, giving the employee an opportunity to respond, or following specific notice or decision-making procedures.
Failure to follow a required contractual or internal procedure may render the dismissal unfair even where there are otherwise sufficient grounds for dismissal.
An employee who believes a dismissal was unfair may challenge it before the Labor Relations Commission (LRC) or through civil litigation. If the dismissal is found to be unfair, the employee may generally be entitled to reinstatement and back pay.
For further information on unfair dismissal claims and LRC procedures, please see our Unfair Dismissal in Korea page.
Dismissal is one of the most important and sensitive areas of HR management. In Korea, where legal protections against dismissal are particularly strong, employers should assess not only whether there are sufficient grounds for termination, but also whether procedural requirements have been satisfied and dismissal is proportionate to the circumstances.
For assistance with dismissal-related compliance under Korean labor law, please contact us.
