Knowledge on Dismissal That a Traditional Korean Medicine Practitioner Should Know
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When opening a Korean medicine clinic, a practitioner may hire staff such as nurse assistants. On the other hand, a Korean medicine practitioner may also be employed in a hospital. In such situations, either the employer may dismiss (terminate the contract) the employee, or the employee may be dismissed. From the perspective of a lawyer, I have observed that disputes over wrongful dismissal often lead to cases being submitted to local labor boards or even to civil and criminal lawsuits. Therefore, it is crucial to understand the key aspects of dismissal.
Dismissal
Dismissal refers to the situation where an employer forces an employee to resign, even though the employee does not wish to do so. If the employer unilaterally ends the labor contract against the employee's will, it is considered dismissal, and such dismissal without just cause is deemed wrongful termination.
Furthermore, forcing an employee to submit a resignation letter for the purpose of revitalizing the team, despite the employee not wanting to resign, also constitutes wrongful dismissal.
Dismissal is generally classified into three types: ordinary dismissal, disciplinary dismissal, and dismissal due to business reasons (reduction-in-force dismissal).
Ordinary Dismissal
Ordinary dismissal due to an employee's fault includes reasons such as: lack of qualifications for the job or insufficient performance, illness that makes it difficult for the employee to fulfill their duties, and leaking company secrets that could harm the business.
In the case of ordinary dismissal, unlike disciplinary dismissal, it is not necessary to follow the procedures such as holding a disciplinary committee or giving the employee an opportunity to explain their actions. However, even in ordinary dismissal, the employer must provide written notice specifying the reasons for dismissal and the effective date of dismissal as per Article 27 of the Labor Standards Act. Additionally, a 30-day notice must be given as per Article 26 of the Labor Standards Act, or the employer must pay a severance fee if the 30-day notice is not given.
The Labor Standards Act (Article 23) explicitly states that an employer cannot dismiss an employee without just cause, and the Enforcement Decree of the Labor Standards Act (Article 14) provides examples of justifiable reasons for dismissal.
Practically, common justifiable reasons for dismissal include: unauthorized absenteeism, misconduct at the workplace, falsification of qualifications or experience, and violence against colleagues or superiors. The context and details of each situation should be evaluated carefully before making a dismissal decision.
Disciplinary and Business Reason Dismissal
Both disciplinary dismissal and business reason dismissal require strict adherence to legal requirements and procedures. In the case of disciplinary dismissal, the employer must comply with the disciplinary regulations outlined in collective agreements or employment rules. For example, if the rules specify that union representatives should participate in the disciplinary committee or that the employee should be given an opportunity to present their defense, failing to do so renders the dismissal invalid.
For business reason dismissal, as per Article 24 of the Labor Standards Act, the employer must demonstrate urgent business necessity and take all possible steps to avoid dismissal. The employer must also establish fair and reasonable criteria for selecting employees for dismissal. Additionally, the employer must notify the employees' representative or union 50 days in advance and engage in sincere negotiations.
In terms of disciplinary actions, depending on the severity of the misconduct, the employer may take various steps such as verbal or written warnings, suspension, demotion, or even dismissal.
Appeals and Labor Board Procedures
If an employee disagrees with the dismissal decision, they can file a complaint with the labor board. The labor board will assign an investigator and request evidence from the complainant and respondent. After conducting an investigation, a hearing will be held within 60 days of filing to determine the fairness of the dismissal.
If the employee disagrees with the decision of the local labor board, they can file an appeal with the central labor board. If they are still dissatisfied, they can seek judicial relief through an administrative lawsuit.
The labor board can either order reinstatement or dismiss the complaint. In some cases, compensation may be awarded to the employee.
Severance Pay and Non-Disclosure Agreements
Regarding resignation, severance pay must be paid within 14 days of the termination date. It is important to have clear agreements and legal reviews regarding the scope of severance pay to avoid legal disputes.
Additionally, before resigning, employees should sign a confidentiality agreement to ensure they do not disclose any company trade secrets or personal information to competitors or external parties.
It may also be necessary to obtain an agreement allowing the company to conduct forensic investigations on company property, such as laptops or computers, if there are concerns about the leakage of trade secrets.
In recent times, companies may also require employees to sign non-compete agreements, which restrict them from working for or managing competing companies for a specific period after leaving. However, such agreements should be detailed and reasonable to avoid infringing on the employee's constitutional right to choose their occupation.
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