We would like to inform you of a recent decision by the Supreme Court on the status of receiving a relief order from the labor relations commission.

In a case where an employee who worked as a hairdresser for a military barber shop but was later dismissed due to a decision to close the barber shop and thus filed a wrongful termination petition with the competent labor relations commission, the Supreme Court ruled on July 14, 2022 that, if the employment relationship had already been terminated by the closure of the barber shop when the employee filed his wrongful termination petition, the employee cannot be deemed to have the benefit of receiving a wrongful termination remedy order from the labor relations commission (Supreme Court Decision No. 2020Du54852 rendered on July 14, 2022; the “First Decision”).

On the same day, the Supreme Court ruled in another case that an employee who filed a wrongful suspension petition with the competent labor relations commission at the time his employment had already been terminated as he reached the company’s retirement age cannot be deemed to have the benefit of receiving a remedy order from the labor relations commission (Supreme Court Decision No. 2021Du46285 rendered on July 14, 2022; the “Second Decision”; the First Decision and the Second Decision collectively referred to as the “Decisions”).

Under the Decisions, the Supreme Court held that if an employee has already lost his/her employee status because he/she reached the company’s retirement age or for other reasons, such as the expiration of the employment term or a business closure, at the time of filing a petition for relief (e.g., wrongful termination, disciplinary action, etc.) with the competent labor relations commission, the employee shall be deemed to have lost the benefit of receiving a relief order from the labor relations commission.

Meanwhile, the Supreme Court also clearly distinguished the Decisions from its previous Supreme Court En Banc Decision No. 2019Du52386 rendered on February 20, 2020. That is, this Supreme Court previous decision (before the full bench of Supreme Court justices) provided that an employee who filed a lawsuit against the labor relations commission for its dismissal of his petition for a wrongful termination remedy, shall have the benefit of a lawsuit for a relief order to receive the amount equivalent to his wages during the period of dismissal, if necessary, even when the employee became unable to be reinstated to his original position because he reached his retirement age or his employment contract expired “while” the effectiveness of the dismissal was disputed through litigation. Therefore, the legal principle of the above decision may not apply to cases where the employment relationship had already been terminated “before” the employee filed a petition for a wrongful termination remedy, etc., as in the Decisions.

The Decisions also clarified the meaning of last year’s enacted Article 30(4) of the Labor Standards Act (“LSA”), which provides that “Even in a case where it is impossible for an employee to be reinstated to his/her original position because the term of his/her employment expires, or he/she reaches the company’s retirement age, and for other reasons, the labor relations commission shall render a relief order or dismiss the case, and in such a case, if the labor relations commission determines that the employee’s dismissal is unfair, it may order the employer to pay the amount equivalent to the wages that the employee could have received during the period of dismissal.” The purpose of this provision is to acknowledge that the employee, who becomes unable to be reinstated to his/her original position due to expiration of his/her term of employment or his/her retirement age “during” the proceedings for relief as to unfair dismissal, etc., should still have the benefit of receiving a relief order - payment equivalent to his/her wages. Therefore, Article 30(4) of the LSA should not be interpreted to mean that the benefit of the relief shall be acknowledged even where the employment relationship has already been terminated “before” the petition for relief was filed, as was the case in the Decisions.

In light of the above, the Supreme Court treats the existence of the benefit to seek a relief order from the labor relations commission differently depending on when the employment relationship was terminated — whether it was “before” or “after” the petition for relief was filed with the labor relations commission.

[Korean version]