Corporate trends / Performance record
Unfair Dismissal Decision Concerning “Re-employment After Retirement Age (Re-employment Rate 42%)” (Unfair Dismissal 319)
- Date2026/03/26 04:23
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[Case Information]
This case is a decision in which the employer prevailed (application dismissed) on the issue of “re-employment after retirement age (re-employment rate 42%).”
Decision Committee: Busan Regional Labor Relations Commission 2025Buhae9083 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.01.09 · Case outcome: Dismissed
Summary of key issues: There were no provisions in the employment contract, rules of employment, or collective agreement specifying concrete requirements or procedures under which the employer must re-employ workers after the mandatory retirement age once certain conditions are met; there were also no provisions intended to impose an obligation on the employer to re-employ workers after retirement age; the re-employment rate after retirement age was approximately 42%, making it difficult to conclude that a labor practice had become so established as to amount in effect to an institutionalized system; and it was difficult to find that a relationship of trust or expectation had been formed that the worker would be re-employed after retirement age, or that such an expectation right existed…
1. Legal Implications
Ⅰ. Case Overview
In this case, a worker who had reached the mandatory retirement age wished to continue working beyond that age. However, the company did not re-employ the worker and instead terminated the employment relationship, whereupon the worker filed an application with the Labor Relations Commission claiming unfair dismissal. The Busan Regional Labor Relations Commission reviewed the employment contract, rules of employment, collective agreement, and practices regarding re-employment after retirement age, and determined whether the employer’s action constituted unfair dismissal.
This case not only addresses whether the dismissal was unfair, but also provides important criteria on what conditions must be met for an expectation right regarding re-employment after retirement age to be recognized, and how the Labor Relations Commission evaluates such issues. It is a type of case frequently handled in the practice of Labor Law Firm Law&.
Ⅱ. Summary of Issues
The issue in this case is whether, “in a situation where the employment contract, rules of employment, and collective agreement contain no explicit provisions on re-employment after retirement age, but a certain percentage of workers have in fact been re-employed after retirement age, the worker can be recognized as having a relationship of trust or an expectation right regarding re-employment after retirement age, and whether the employer’s refusal to re-employ in spite of this constitutes unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case found that there were no provisions in the employment contract, rules of employment, or collective agreement that set out specific requirements and procedures stating that “if certain conditions are met, the worker must be re-employed after retirement age,” nor were there any provisions intended to impose an obligation on the employer to re-employ workers after retirement age. It also noted that the re-employment rate after retirement age was only about 42%, making it difficult to conclude that this had solidified as a labor practice and become effectively established as a system. In light of these circumstances, the panel determined that it was difficult to find that a relationship of trust or an expectation right had been formed whereby the worker could expect to be re-employed after retirement age.
Taking these circumstances together, the panel held that the termination in this case was a lawful termination of the employment relationship due to the arrival of the mandatory retirement age, and that the refusal to re-employ after retirement age could not be regarded as unfair dismissal.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, it is important to bear in mind that the mere fact that “the company has re-employed workers to some extent” does not mean that re-employment after retirement age is guaranteed. Whether an expectation right is recognized may depend on whether there are specific standards, procedures, and mandatory provisions concerning extension of the retirement age or re-employment after retirement age in the rules of employment, collective agreement, or employment contract, and on how such provisions have actually been implemented in practice.
In addition, if the worker continues to work after retirement age and the employment relationship in effect continues without a fixed term, then termination based solely on the arrival of the retirement age or on age may be evaluated as a dismissal, in which case a “just cause” under the Labor Standards Act would be required. It is therefore important to accurately confirm the actual working arrangements and contractual form after retirement age.
Ⅴ. Practical Points (From the Employer/Company Perspective)
From the employer’s perspective, it is very important for dispute prevention to clearly set out in the rules of employment, collective agreement, and internal regulations the standards for mandatory retirement age, re-employment after retirement age, and fixed-term (contract) employment such as “special contract” (choktack) arrangements. In particular, if wording such as “workers who meet certain requirements will be re-employed” is used, and those requirements and procedures are not specified in detail, this may later lead to claims of expectation rights by workers and disputes over unfair dismissal. Accordingly, the requirements, procedures, and evaluation criteria should be designed to be objective and reasonable.
Furthermore, if a practice of selectively re-employing only some workers after retirement age is repeated over a long period, employers should periodically review the criteria for re-employment and how they are actually implemented, to ensure that a de facto re-employment practice has not developed only for certain groups or individuals, and to prevent disputes over discrimination or expectation rights.
2. Matters Decided
a. Case Overview and Procedural History
Taking into account that there are no provisions in the employment contract, rules of employment, or collective agreement that specify concrete requirements or procedures stating that workers must be re-employed after retirement age once certain conditions are met; that there are no provisions intended to impose an obligation on the employer to re-employ workers after retirement age; that the re-employment rate after retirement age is about 42%, making it difficult to conclude that a labor practice has become so established as to be effectively institutionalized; and that it is difficult to find that a relationship of trust has been formed that the worker would be re-employed after retirement age or that an expectation right has been recognized, the termination of the employment relationship on the ground of reaching the retirement age is justified.
3. Summary of Decision
a. Summary of the Labor Relations Commission’s Reasoning
Taking into account that there are no provisions in the employment contract, rules of employment, or collective agreement that specify concrete requirements or procedures stating that workers must be re-employed after retirement age once certain conditions are met; that there are no provisions intended to impose an obligation on the employer to re-employ workers after retirement age; that the re-employment rate after retirement age is about 42%, making it difficult to conclude that a labor practice has become so established as to be effectively institutionalized; and that it is difficult to find that a relationship of trust has been formed that the worker would be re-employed after retirement age or that an expectation right has been recognized, the termination of the employment relationship on the ground of reaching the retirement age is justified. /
[Further Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision Concerning ‘Employee Status · Interest in Relief (Termination by Agreement During Probationary Period)’”
- “Unfair Dismissal Decision Concerning ‘Disciplinary Severity (Unauthorized Absence · Non-compliance with Work Instructions)’”
[Tags]
Unfair dismissal, re-employment after retirement age (re-employment rate 42%), retirement age, others, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is one of the “Unfair Dismissal Decision” series by Labor Law Firm Law&.
※ The previous article, “Unfair Dismissal Decision Concerning ‘Employee Status · Interest in Relief (Termination by Agreement During Probationary Period)’,” can be viewed in a new window.
※ The list of decisions related to re-employment after retirement age (re-employment rate 42%) can be viewed together in the “List of Decisions Related to Re-employment After Retirement Age (Re-employment Rate 42%)”.
※ Korean version of this case: Korean article
This case is a decision in which the employer prevailed (application dismissed) on the issue of “re-employment after retirement age (re-employment rate 42%).”
Decision Committee: Busan Regional Labor Relations Commission 2025Buhae9083 ○ ○ ○ Application for Remedy for Unfair Dismissal
2026.01.09 · Case outcome: Dismissed
Summary of key issues: There were no provisions in the employment contract, rules of employment, or collective agreement specifying concrete requirements or procedures under which the employer must re-employ workers after the mandatory retirement age once certain conditions are met; there were also no provisions intended to impose an obligation on the employer to re-employ workers after retirement age; the re-employment rate after retirement age was approximately 42%, making it difficult to conclude that a labor practice had become so established as to amount in effect to an institutionalized system; and it was difficult to find that a relationship of trust or expectation had been formed that the worker would be re-employed after retirement age, or that such an expectation right existed…
1. Legal Implications
Ⅰ. Case Overview
In this case, a worker who had reached the mandatory retirement age wished to continue working beyond that age. However, the company did not re-employ the worker and instead terminated the employment relationship, whereupon the worker filed an application with the Labor Relations Commission claiming unfair dismissal. The Busan Regional Labor Relations Commission reviewed the employment contract, rules of employment, collective agreement, and practices regarding re-employment after retirement age, and determined whether the employer’s action constituted unfair dismissal.
This case not only addresses whether the dismissal was unfair, but also provides important criteria on what conditions must be met for an expectation right regarding re-employment after retirement age to be recognized, and how the Labor Relations Commission evaluates such issues. It is a type of case frequently handled in the practice of Labor Law Firm Law&.
Ⅱ. Summary of Issues
The issue in this case is whether, “in a situation where the employment contract, rules of employment, and collective agreement contain no explicit provisions on re-employment after retirement age, but a certain percentage of workers have in fact been re-employed after retirement age, the worker can be recognized as having a relationship of trust or an expectation right regarding re-employment after retirement age, and whether the employer’s refusal to re-employ in spite of this constitutes unfair dismissal.”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The decision panel in this case found that there were no provisions in the employment contract, rules of employment, or collective agreement that set out specific requirements and procedures stating that “if certain conditions are met, the worker must be re-employed after retirement age,” nor were there any provisions intended to impose an obligation on the employer to re-employ workers after retirement age. It also noted that the re-employment rate after retirement age was only about 42%, making it difficult to conclude that this had solidified as a labor practice and become effectively established as a system. In light of these circumstances, the panel determined that it was difficult to find that a relationship of trust or an expectation right had been formed whereby the worker could expect to be re-employed after retirement age.
Taking these circumstances together, the panel held that the termination in this case was a lawful termination of the employment relationship due to the arrival of the mandatory retirement age, and that the refusal to re-employ after retirement age could not be regarded as unfair dismissal.
Ⅳ. Practical Points (From the Worker’s Perspective)
From the worker’s perspective, it is important to bear in mind that the mere fact that “the company has re-employed workers to some extent” does not mean that re-employment after retirement age is guaranteed. Whether an expectation right is recognized may depend on whether there are specific standards, procedures, and mandatory provisions concerning extension of the retirement age or re-employment after retirement age in the rules of employment, collective agreement, or employment contract, and on how such provisions have actually been implemented in practice.
In addition, if the worker continues to work after retirement age and the employment relationship in effect continues without a fixed term, then termination based solely on the arrival of the retirement age or on age may be evaluated as a dismissal, in which case a “just cause” under the Labor Standards Act would be required. It is therefore important to accurately confirm the actual working arrangements and contractual form after retirement age.
Ⅴ. Practical Points (From the Employer/Company Perspective)
From the employer’s perspective, it is very important for dispute prevention to clearly set out in the rules of employment, collective agreement, and internal regulations the standards for mandatory retirement age, re-employment after retirement age, and fixed-term (contract) employment such as “special contract” (choktack) arrangements. In particular, if wording such as “workers who meet certain requirements will be re-employed” is used, and those requirements and procedures are not specified in detail, this may later lead to claims of expectation rights by workers and disputes over unfair dismissal. Accordingly, the requirements, procedures, and evaluation criteria should be designed to be objective and reasonable.
Furthermore, if a practice of selectively re-employing only some workers after retirement age is repeated over a long period, employers should periodically review the criteria for re-employment and how they are actually implemented, to ensure that a de facto re-employment practice has not developed only for certain groups or individuals, and to prevent disputes over discrimination or expectation rights.
2. Matters Decided
a. Case Overview and Procedural History
Taking into account that there are no provisions in the employment contract, rules of employment, or collective agreement that specify concrete requirements or procedures stating that workers must be re-employed after retirement age once certain conditions are met; that there are no provisions intended to impose an obligation on the employer to re-employ workers after retirement age; that the re-employment rate after retirement age is about 42%, making it difficult to conclude that a labor practice has become so established as to be effectively institutionalized; and that it is difficult to find that a relationship of trust has been formed that the worker would be re-employed after retirement age or that an expectation right has been recognized, the termination of the employment relationship on the ground of reaching the retirement age is justified.
3. Summary of Decision
a. Summary of the Labor Relations Commission’s Reasoning
Taking into account that there are no provisions in the employment contract, rules of employment, or collective agreement that specify concrete requirements or procedures stating that workers must be re-employed after retirement age once certain conditions are met; that there are no provisions intended to impose an obligation on the employer to re-employ workers after retirement age; that the re-employment rate after retirement age is about 42%, making it difficult to conclude that a labor practice has become so established as to be effectively institutionalized; and that it is difficult to find that a relationship of trust has been formed that the worker would be re-employed after retirement age or that an expectation right has been recognized, the termination of the employment relationship on the ground of reaching the retirement age is justified. /
[Further Related Decisions]
- “Unfair Dismissal Decision Concerning ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision Concerning ‘Employee Status · Interest in Relief (Termination by Agreement During Probationary Period)’”
- “Unfair Dismissal Decision Concerning ‘Disciplinary Severity (Unauthorized Absence · Non-compliance with Work Instructions)’”
[Tags]
Unfair dismissal, re-employment after retirement age (re-employment rate 42%), retirement age, others, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is one of the “Unfair Dismissal Decision” series by Labor Law Firm Law&.
※ The previous article, “Unfair Dismissal Decision Concerning ‘Employee Status · Interest in Relief (Termination by Agreement During Probationary Period)’,” can be viewed in a new window.
※ The list of decisions related to re-employment after retirement age (re-employment rate 42%) can be viewed together in the “List of Decisions Related to Re-employment After Retirement Age (Re-employment Rate 42%)”.
※ Korean version of this case: Korean article
