Corporate trends / Performance record
Case on Unfair Dismissal and “Remedial Interest (Purely Formal Reinstatement Order)” (Unfair Dismissal 3)
- Date2025/12/28 22:25
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In connection with “remedial interest (purely formal reinstatement order),” we would like to share with you a case in which an application for remedy for unfair dismissal was filed and the employee prevailed, together with the legal implications of the decision. This case was handled by the Gyeonggi Regional Labor Relations Commission and falls within a type of unfair dismissal dispute frequently encountered in the practice of the Labor Relations Commissions and by Labor Law Firm Law& in the field. It is also a useful reference for understanding the relationship between “purely formal reinstatement” and remedial interest, which often becomes an issue in collective redundancy disputes.
1. Legal Implications
The issues in this case were: “whether the remedial interest in filing an application for remedy for unfair dismissal is extinguished when the employer has merely expressed an intention to reinstate in the course of a complaint case before the Labor Office, and whether a dismissal carried out without written notice can be regarded as a lawful dismissal.”
The panel in this case held that the employer, at the time, merely responded that it had an intention to issue a reinstatement order and in fact never issued a formal reinstatement order to the employee thereafter; that even if such response were to be regarded as a reinstatement order, the employer did not pay the employee an amount equivalent to wages for the period of dismissal; that the employer did not specify the date of reinstatement; and that, despite the employee’s circumstances making reinstatement to the construction team difficult due to childcare responsibilities, the employer only mentioned the possibility of reinstatement to the construction team, which was not the employee’s original position.
Accordingly, notwithstanding the employer’s argument that the employee could already have accepted the reinstatement order and that, since the employer had ordered reinstatement, there was no longer any remedial interest before the Labor Relations Commission, the panel found that the dismissal in this case was unfair because there was no just cause for the dismissal itself and there was a serious procedural defect in that the obligation to give written notice of dismissal had not been observed.
As this case illustrates, you should note that the mere mention by an employer of an “intention to reinstate” or a vague proposal of reinstatement to a different department rather than to the original position is insufficient to conclude that the remedial interest, as understood by the Labor Relations Commission, has been extinguished. In addition, not only the substantive justification for dismissal but also procedural requirements such as written notice must be strictly complied with. Where the employee prefers monetary compensation instead of reinstatement to the original position, the Labor Relations Commission may order payment of an amount equivalent to wages for the dismissal period through the monetary compensation order system under the Labor Standards Act. Therefore, in situations where an unfair dismissal dispute is anticipated, it is important from the outset to carefully review documentation, methods of notification, and the genuineness of any reinstatement proposal.
2. Matters Decided
A. Whether there is remedial interest in the application for remedy
The employer argued that, because it had ordered the employee’s reinstatement to the construction team in response to the complaint filed by the employee, there was no remedial interest in the application for remedy. However, (i) at that time, the employer merely stated that it had an intention to issue a reinstatement order, and never formally issued a reinstatement order to the employee thereafter; (ii) even if such response were to be deemed a reinstatement order, the employer did not pay an amount equivalent to wages for the period of dismissal; and (iii) furthermore, the employer did not specify the date of reinstatement and, despite the employee’s circumstances making reinstatement to the construction team difficult due to childcare responsibilities, stated only that reinstatement to the construction team, which was not the employee’s original position, was possible. In light of all these circumstances, it is difficult to recognize that the employer’s reinstatement order was made in good faith.
B. Whether the dismissal was justified
There was no just cause sufficient to justify the dismissal, and the obligation to give written notice of dismissal was violated, resulting in a procedural defect. Therefore, the dismissal of the employee was unfair.
C. Whether to accept the application for a monetary compensation order
Since the employee requested monetary compensation in lieu of reinstatement to the original position, this request was accepted. As a result of calculating the amount of monetary compensation, KRW 15,429,550 (fifteen million four hundred twenty-nine thousand five hundred fifty won) was found to be payable.
3. Gist of the Decision
A. Whether there is remedial interest in the application for remedy
The employer argued that, because it had ordered the employee’s reinstatement to the construction team in response to the complaint filed by the employee, there was no remedial interest in the application for remedy. However, (i) at that time, the employer merely stated that it had an intention to issue a reinstatement order, and never formally issued a reinstatement order to the employee thereafter; (ii) even if such response were to be deemed a reinstatement order, the employer did not pay an amount equivalent to wages for the period of dismissal; and (iii) furthermore, the employer did not specify the date of reinstatement and, despite the employee’s circumstances making reinstatement to the construction team difficult due to childcare responsibilities, stated only that reinstatement to the construction team, which was not the employee’s original position, was possible. In light of all these circumstances, it is difficult to recognize that the employer’s reinstatement order was made in good faith.
B. Whether the dismissal was justified
There was no just cause sufficient to justify the dismissal, and the obligation to give written notice of dismissal was violated, resulting in a procedural defect. Therefore, the dismissal of the employee was unfair.
C. Whether to accept the application for a monetary compensation order
Since the employee requested monetary compensation in lieu of reinstatement to the original position, this request was accepted. As a result of calculating the amount of monetary compensation, KRW 15,429,550 (fifteen million four hundred twenty-nine thousand five hundred fifty won) was found to be payable.
1. Legal Implications
The issues in this case were: “whether the remedial interest in filing an application for remedy for unfair dismissal is extinguished when the employer has merely expressed an intention to reinstate in the course of a complaint case before the Labor Office, and whether a dismissal carried out without written notice can be regarded as a lawful dismissal.”
The panel in this case held that the employer, at the time, merely responded that it had an intention to issue a reinstatement order and in fact never issued a formal reinstatement order to the employee thereafter; that even if such response were to be regarded as a reinstatement order, the employer did not pay the employee an amount equivalent to wages for the period of dismissal; that the employer did not specify the date of reinstatement; and that, despite the employee’s circumstances making reinstatement to the construction team difficult due to childcare responsibilities, the employer only mentioned the possibility of reinstatement to the construction team, which was not the employee’s original position.
Accordingly, notwithstanding the employer’s argument that the employee could already have accepted the reinstatement order and that, since the employer had ordered reinstatement, there was no longer any remedial interest before the Labor Relations Commission, the panel found that the dismissal in this case was unfair because there was no just cause for the dismissal itself and there was a serious procedural defect in that the obligation to give written notice of dismissal had not been observed.
As this case illustrates, you should note that the mere mention by an employer of an “intention to reinstate” or a vague proposal of reinstatement to a different department rather than to the original position is insufficient to conclude that the remedial interest, as understood by the Labor Relations Commission, has been extinguished. In addition, not only the substantive justification for dismissal but also procedural requirements such as written notice must be strictly complied with. Where the employee prefers monetary compensation instead of reinstatement to the original position, the Labor Relations Commission may order payment of an amount equivalent to wages for the dismissal period through the monetary compensation order system under the Labor Standards Act. Therefore, in situations where an unfair dismissal dispute is anticipated, it is important from the outset to carefully review documentation, methods of notification, and the genuineness of any reinstatement proposal.
2. Matters Decided
A. Whether there is remedial interest in the application for remedy
The employer argued that, because it had ordered the employee’s reinstatement to the construction team in response to the complaint filed by the employee, there was no remedial interest in the application for remedy. However, (i) at that time, the employer merely stated that it had an intention to issue a reinstatement order, and never formally issued a reinstatement order to the employee thereafter; (ii) even if such response were to be deemed a reinstatement order, the employer did not pay an amount equivalent to wages for the period of dismissal; and (iii) furthermore, the employer did not specify the date of reinstatement and, despite the employee’s circumstances making reinstatement to the construction team difficult due to childcare responsibilities, stated only that reinstatement to the construction team, which was not the employee’s original position, was possible. In light of all these circumstances, it is difficult to recognize that the employer’s reinstatement order was made in good faith.
B. Whether the dismissal was justified
There was no just cause sufficient to justify the dismissal, and the obligation to give written notice of dismissal was violated, resulting in a procedural defect. Therefore, the dismissal of the employee was unfair.
C. Whether to accept the application for a monetary compensation order
Since the employee requested monetary compensation in lieu of reinstatement to the original position, this request was accepted. As a result of calculating the amount of monetary compensation, KRW 15,429,550 (fifteen million four hundred twenty-nine thousand five hundred fifty won) was found to be payable.
3. Gist of the Decision
A. Whether there is remedial interest in the application for remedy
The employer argued that, because it had ordered the employee’s reinstatement to the construction team in response to the complaint filed by the employee, there was no remedial interest in the application for remedy. However, (i) at that time, the employer merely stated that it had an intention to issue a reinstatement order, and never formally issued a reinstatement order to the employee thereafter; (ii) even if such response were to be deemed a reinstatement order, the employer did not pay an amount equivalent to wages for the period of dismissal; and (iii) furthermore, the employer did not specify the date of reinstatement and, despite the employee’s circumstances making reinstatement to the construction team difficult due to childcare responsibilities, stated only that reinstatement to the construction team, which was not the employee’s original position, was possible. In light of all these circumstances, it is difficult to recognize that the employer’s reinstatement order was made in good faith.
B. Whether the dismissal was justified
There was no just cause sufficient to justify the dismissal, and the obligation to give written notice of dismissal was violated, resulting in a procedural defect. Therefore, the dismissal of the employee was unfair.
C. Whether to accept the application for a monetary compensation order
Since the employee requested monetary compensation in lieu of reinstatement to the original position, this request was accepted. As a result of calculating the amount of monetary compensation, KRW 15,429,550 (fifteen million four hundred twenty-nine thousand five hundred fifty won) was found to be payable.
