배움과 공유의 시간

3. Terminate medical device terminators

If a worker suffers from an illness or is injured in non-work, fails to report to work normally after the expiration of a legally defined medical device, or is unable to engage in the original work, or is also unable to engage in other work arranged by the company, the company may pay economic compensation plus one month’s severance notice allowance ("N+1") and terminate the labour contract.

Standards for the determination of incapacity of work
In the event of a situation in which an employee is unable to enter the office but is unable to engage in the work, the entity may consider whether to terminate the contract. In this case, the entity cannot determine whether the employee is able to engage in the work, and must be assessed by the Labor Competency Assessment Committee (article 35 on the slight issue of the thorough implementation of the Labor Law). There is a risk that a company considers it impossible for an employee to do his or her job only through appearances without being appraised by the Commission on Labor Ability Test, and that it is considered illegal to terminate a labor contract. In practice, cases that are even audited by the Labor Competency Assessment Committee are very rare, and most are conducted by giving and lifting economic compensation, depending on the inability to report to work after the medical plane is over.

4. Terminating contracts of persons who are not qualified for the job

If a worker is unable to perform his or her duties and is still judged unfit for the job after training or job adjustment, the company may pay economic compensation plus one month’s notice of dismissal ("N+1") and terminate the labor contract.

[Case] Lose due to default of court procedure
J is a technical company, A/S, and due to its negligence in A/S, the amount of returns and customer complaints have been continuously reported. Two months later, the company notified J of the cancellation of the labor contract for the reason of non-compliance. J has thus filed for arbitration, and the company has lost.
(Explain)
The company lost the case because it could not provide evidence that it had gone through such legal procedures, although dismissal was possible only after education or job adjustment, and the decision to fail the job was made again.

Criteria for judging job defects
The criteria for non-compliance of duties stipulate that" the duties agreed upon in the labor contract or the workload of the same job or of the same person cannot be achieved" (Article 26 of the Explanation of the Labor Law). However, the final judgment is delegated to the entity, which requires a fair and objective high performance system. In addition, labor contracts or employment rules should define the criteria for job deficiencies, such as two consecutive high scores of less than 60 points (100 points), etc.

Provide a second chance in either training or job coordination
In the event of dismissal, training or job adjustment must be carried out. Whether an entity conducts education or adjusts its duties, the entity can choose on its own. When selecting an education, it is common to take a few hours or so to satisfy the formal requirements and to get a confirmation of the training.
Since the selection of job adjustments is due to lack of job responsibilities, there is no need to obtain consent from employees, there is no need to change labor contracts, and the company can unilaterally adjust its duties (Article 1 of the Ministry of Labor’s Public Affairs’ Reply to the question of the occurrence of labor disputes between employees and businesses due to the change of position). If the assessment of non-compliance is still made after education or job adjustment, the entity may fire the employees.

30 days' notice or one month's wage payment
Since workers are free from negligence, they are required to pay 30 days' notice of dismissal, or an additional one-month wage. Almost all companies pay one-month wages and immediately lift labor contracts. Because if you enter a medical plane or get pregnant with a disease in that month, you will not be able to fire until the special situation

Procedure for dismissal of the reason for non-commissioned job
In the event of a labor dispute, users are liable to prove the legality of their dismissal, and it is very rare in practice for them to actually take such procedures and fire, except for those with clear sales positions, because there is a high possibility of losing if there is a clear set of assessment criteria, evidence of job defect and any defect in the implementation of the court procedure (usually in the form of a negotiation).
1 Unsustainable situation of the current task
Evidence is needed that the work agreed to in the labour contract has not been completed or that the work force of the same task has been significantly underperformed. This requires the completion of explicit and objective standards of high performance in labor contracts or employment rules.
(e.g. in case of a sales position, the sales amount of 100,000元 per month is not met, considered unfit for duty.
It is necessary to preserve evidence related to performance outcome, or job defect, such as work duties determined by the company or data related to the incomplete workload (employee verification required)
2 Progress in education or job adjustment for workers
Job deficiencies can be caused by problems in the work environment rather than by one's own ability.
The law stipulates that one more opportunity is given through education or job adjustments. Education
Education records, employee education registration tables, education reports, or post-education examination papers,
It is necessary to preserve evidence such as education's contents.
3 Judging that he is still unfit for the job after training or job adjustment
Demonstrate that they still fail to complete their duties or workload even after training or job adjustment.
relevant evidence is needed to do Usually, the outcome is proof.
4 Completion of labor contract cancellation notice and preservation of evidence to the person

Practical measures to dismiss employees who are not qualified for the job

[Question] Method of firing a person who is not in the position
One of the employees is not capable of doing his job, so we are going to give him/her economic compensation this time (no negligence by the person to be dismissed). What would be the problem if such incompetent staff were to be organized, the economic compensation plus one month’s worth of layoffs?

There is a clause in the Labor Contract Act that allows for the temporary dismissal of a worker without a job, but in reality, using this provision to fire him requires a very complicated process over a long period of time, as described above. In reality, it is difficult for small and medium-sized companies to take the procedures prescribed by the law, either on time or on evidence. Therefore, in this case, it is realistic to use the company as a bargaining chip with objective data related to poor performance and to take a "negotiate-off" approach under the N+1 condition, putting pressure on the company to exercise its job-coordinating card in the event of non-compliance.

5. Contract cancellation based on the reason for the significant change in objective circumstances


In the event that a significant change occurs in the objective circumstances that were based on the signing of the labor contract, the user may cancel the labor contract under the terms of N+1, and negotiations on the change of the labor contract cannot be made even though the labor-management agreement has been reached.

an interpretation of a significant change in the objective situation
Companies should secure evidence of changes in objective circumstances that would no longer be able to implement labor contracts such as corporate transfers, closures of stores and M&As. While there is nothing wrong with external objective factors, it is debatable whether they belong to a significant change in the objective situation when job cuts are needed in accordance with the closure of certain departments within the company, or reorganization of the company’s.
Legally and strictly, this can be seen as a subjective judgment of the company’s management class rather than a change in objective circumstances. However, in a situation where the business environment is radically changing, it cannot be tied to the legal profession alone. For example, because the cancellation of a business item may be recognized at the discretion of the judge if there is a reasonable and sufficient reason for the department to be shut down altogether, the company needs to try to adjust its duties and negotiate on the basis of Article 40(3) of the Labor Contract Act, and take action to terminate the contract if it fails to reach a settlement.

[The Labor Ministry's explanation of the "labor law"] ( 해석1994 [No. 289)]]
Article26 The "observation situation" of this clause shall be such that it is impossible to enforce the terms of all or part of a labor contract.
This refers to, for example, other circumstances that make it impossible, such as the transfer of an entity, the consolidation of an entity’s absorption, or the transfer of an entity’s assets.

[working-level measures]

1 Collection and presentation of data demonstrating significant changes in objective situations
As to what is a "significant change in the objective situation" that would make it impossible to implement labor contracts, labor laws do not have a clear interpretation. In the event of a labor action, the enterprise shall be liable for proof of "significant changes in the objective situation" and it is difficult to obtain the support of the judge for reasons that go beyond rationality or that are sub-approval.
2 Conduct negotiations with workers on the change of labor contract
The company needs a consultation process regarding the change of labor contracts with workers. The labor contract’s negotiation change notice [Sample10-12], which takes into account objective changes in the situation, is sent to the workers, and the workers are required to respond within a certain time frame, leaving evidence that the consultation was carried out. If such a court procedure is not followed properly and the contract is unilaterally terminated, it is considered an illegal dismissal and a double-time economic compensation payment risk occurs.

[Labor Contracts Act]
Article40 In the case below, the contract may be terminated after written notice 30 days in advance, or after payment of one month's wages.
(3) In case a significant change in the objective situation that was based on the signing of a labor contract prevents the user from fulfilling the original labor contract, it is not possible to reach an agreement on the change in the contents of the labor contract even though the employee has consulted;

A change in the organizational structure of the company is not recognized as a significant change in the objective situation
L joined a foreign-invested company and successfully served as the sales manager, but the deteriorating market conditions forced the company to restructure its operations, and the senior L was relieved of its labor contract in the process, citing "significant changes in the objective situation." L filed for labor arbitration, and the company lost.
(Explain)
Significant changes in objective circumstances generally refer to situations in which a company cannot continue to fulfil labor contracts, such as production conversion, distance transfer, technology modification, mergers, and spin-offs, and, in the case of changes in management strategy, is not part of this category because it is adjustable to other departments.

[Case of victory]
The relocation of the factory is recognized as a major change.
L is a front-line official in the factory production department and has signed a five-year labor contract. However, under the local government's natural heritage protection policy, the factory was forced to relocate from A to B, and only the sales department remained at A. The company had hoped to go to the city of B and continue its original work, but the two sides failed to reach an agreement even though negotiations were underway, as L did not back down from its position of staying at A. The entity decided to terminate the labor contract on one-sided basis, and L rejected it and applied for labor, but the company won the case.
(Explain)
The objective situation that was based on the conclusion of the labor contract, as it was inevitable to relocate according to the government's policy.
A major change in can be seen as a typical example of a failure to continue to fulfil a labor contract.
In addition, the company negotiated with Hong Gil-dong on the change of labor contract, but they agreed.
Because it could not be, it can be seen that the lifting of a company's labor contract is in accordance with the law.