[1] In a case where an employer does not entirely state the grounds for dismissal when notifying the dismissal in writing, whether it constitutes a notification of dismissal in violation of Article 27 of the Labor Standards Act (affirmative)

[2] In a case where Party A concluded an employment contract with Party B for a period of one year and did not separately stipulate the termination date of the employment contract while entering into a new employment contract, and Company B did not state the grounds for the termination of the contract or a separate ground provision while issuing Party B a notice of termination of the contract to Party A, the case holding that the contract constitutes a notification in violation of Article 27 of the Labor Standards Act on the ground that the notice of termination of the contract corresponding to the notice of termination of the contract to Party

[1] Article 27 of the Labor Standards Act provides that the employer shall be notified in writing of the grounds for and time of the dismissal in order to dismiss a worker. This provision aims at ensuring that the employer is careful in dismissing the worker through written notification of the grounds for dismissal, etc. In addition, the existence and time of dismissal and the reason for dismissal can be settled properly and easily, and that workers can properly respond to dismissal. Thus, when the employer notifies in writing the employer of the grounds for dismissal in detail, it is necessary to make it possible for the employer to know in detail what is the grounds for dismissal in the worker’s wife. However, if the person subject to dismissal is already aware of what is the grounds for dismissal and can sufficiently respond to them, it does not constitute a violation of the above provision even if the reasons for dismissal are not specified in the written notification of dismissal. However, considering the contents and purpose of Article 27 of the Labor Standards Act, even if the employer knows that the grounds for dismissal are well known and can respond to them, if the employer did not entirely state the grounds for dismissal in writing, it shall be deemed as a violation of Article 27 of the Labor Standards Act.

[2] The case holding that the court below erred by misapprehending legal principles in holding that the notice of termination of a contract does not violate Article 27 of the Labor Standards Act merely on the ground that, in a case where Party B did not state the grounds for termination of the contract or any separate grounds provision while issuing the notice of termination of the contract to Party A when concluding an employment contract for a period of one year with Party B and concluding a new employment contract, and Company B did not state the grounds for termination of the contract, on the ground that the notice of termination of the contract corresponding to the notice of termination of the contract to Party A was not entirely stated in the notice of termination of the contract, and thus, Party A violated Article 27 of the Labor Standards Act, even though the ground for dismissal was specifically known and appropriately responding thereto.

[1] Article 27 of the Labor Standards Act / [2] Article 27 of the Labor Standards Act

[1] Supreme Court Decision 2011Da42324 Decided October 27, 2011 (Gong2011Ha, 2429) Supreme Court Decision 2012Da81609 Decided December 24, 2014

Plaintiff (Law Firm Ulul, Attorneys Gu Young-si et al., Counsel for the plaintiff-appellant)

Hyundai Heavy Industries Co., Ltd. (Law Firm LLC, Attorneys Jeong Jin-si et al., Counsel for the defendant-appellant)

Busan High Court Decision 2016Na54360 decided April 19, 2017

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. A. Article 27 of the Labor Standards Act provides that an employer who intends to dismiss a worker shall be notified in writing of the grounds for and timing of the dismissal. Such provision provides that the employer shall be careful in dismissing the worker through written notification of the grounds for dismissal, etc. In addition, the purpose is to ensure that the existence and timing of dismissal and the reason for dismissal can be settled in an appropriate and easy manner after the dismissal, and that workers can respond appropriately to the dismissal. Thus, when the employer notifies in writing the employer of the grounds for dismissal in detail, it shall be ensured that the employer can clearly understand what the reasons for dismissal are in the workplace (see Supreme Court Decision 2011Da42324, Oct. 27, 201, etc.). However, if a person subject to dismissal is already aware of the grounds for dismissal and can sufficiently respond thereto, it cannot be deemed as a violation of the above provision even if the employer did not clearly state the grounds for dismissal in written notification (see Supreme Court Decision 201Da27286, Dec. 24, 2014).

B. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

1) On November 30, 2009, the Plaintiff entered into an employment contract with Defendant Company for a one-year period of November 30, 2009, and served at Defendant Company’s International Legal Team.

2) On March 8, 2011, the Plaintiff concluded a valid employment contract with the Defendant Company from November 30, 2010, and did not separately set the termination period of the employment contract.

3) On January 19, 2015, Defendant Company issued a notice of termination of the contract (hereinafter “instant notice of termination”) to the Plaintiff on January 16, 2015. The purport of the instant notice of termination is that “I will notify you that you will terminate the employment contract with you on January 23, 2015 pursuant to the provisions of paragraph (2) of the employment contract which was mutually concluded on March 8, 201,” and does not include the reasons for termination of the contract or a separate ground provision. The content of paragraph (2) of the employment contract is that “I do not set the period of the Plaintiff’s employment contract, and the Defendant Company must either notify you two months prior to the dismissal or pay wages for two months.”

C. Examining the above facts in light of the legal principles as seen earlier, the instant notice of termination of the contract, which constitutes a notice of dismissal of the Plaintiff, is not entirely indicated in the grounds for dismissal, and thus constitutes notification violating Article 27 of the Labor Standards Act.

Nevertheless, the lower court determined that the notice of dismissal by the notice of termination of the contract in this case was not in violation of Article 27 of the Labor Standards Act solely on the ground that the Plaintiff was specifically aware of the grounds for dismissal and was in a situation where the Plaintiff could properly respond thereto. In so doing, the lower court erred by misapprehending the legal doctrine on the method of notification of dismissal as stipulated under Article 27 of the Labor Standards Act, thereby adversely affecting the conclusion

2. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)