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[Recent Court Case 3] A disposition of removal from work without having complied with a statutory written notice under the Labor Standards Act constitutes a disciplinary dismissal in violation of the procedures and is thus invalid even if such removal follows a suspension and is based on the personnel policy or the rules of employment of the employer

2021.01.14

[Case No.: Suwon District Court Decision 2019Gahap20989 dated Oct. 29, 2020] 
 
The Suwon District Court ruled that a disposition of removal from work without having complied with a statutory written notice under the Labor Standards Act constitutes a disciplinary dismissal in violation of the procedures and is thus invalid even though the removal from office is based on the personnel policy or the rules of employment of the employer.  
 
On January 30, 2019, the defendant (employer) put the plaintiff (employee) on a suspension (i.e., suspension from the current position until another position is to be assigned) by reason that the plaintiff had ‘received warnings three times or more for the last two years.’ On the same day, the defendant notified the plaintiff to ‘wait at home from February 1, 2019 in accordance with the personnel policy’ of the company (the “Suspension”). Thereafter, on April 30, 2019, the defendant decided to remove the plaintiff from work in accordance with its personnel policy by reason that the plaintiff was not assigned to a position even after passing of the three-month period from the date of Suspension, and notified the plaintiff that the ‘disposition of removal from work shall take effet as of May 1, 2019’ (the “Removal from Work”). 
 
The Suwon District Court ruled that the Suspension issued under the company personnel policy and the resulting Removal from Work, taken together, terminate the employment relationship according to the employer’s unilateral intention against the employee’s will, and thus de facto constitute a disciplinary dismissal, and thus, shall be subject to restrictions under the Labor Standards Act. 
 
Viewing that in the course of the Suspension and the resulting disposition of the Removal from Work, which is deemed a disciplinary dismissal, neither the plaintiff (the employee) could be deemed to have been given an opportunity to give explanations in repect of the cause for the disciplinary action, nor the defendant (the employer) could be deemed to have properly performed the statutory duty to give a written notice under Article 27 of the Labor Standards Act, the Suwon District Court found that the disposition of the Removal from Work lacks the procedural legitimacy and is thus invalid.

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