Corporate trends / Performance record
Unfair Dismissal Decision on “Employee Status and Retirement Age (Employees Continuing to Work After Mandatory Retirement)” (Unfair Dismissal 308)
- Date2026/03/23 04:04
- Read 201
This case concerns an unfair dismissal decision in which the employee prevailed in full on the issues of “employee status and application of retirement age (employees continuing to work after mandatory retirement).”
[Case Information]
This case is an unfair dismissal decision that concluded with a full win for the employee on the issues of “employee status and application of retirement age (employees continuing to work after mandatory retirement).”
Decision Committee: Gyeonggi Regional Labor Relations Commission, 2025 Unfair Dismissal 9431 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2026.01.09 · Result: Fully upheld
Summary of key issues:
A. Whether the applicant qualifies as an “employee” under the Labor Standards Act
(1) The employer entered into an employment contract with the applicant and did not conclude any separate contract regarding appointment as an executive or remuneration for executives;
(2) The applicant was not a registered executive on the corporate registry and did not hold any shares in the company;
(3) It was difficult to view the applicant as having had such independent authority in the performance of duties as to negate employee status;
In light of these and other factors, …
1. Legal Implications
Ⅰ. Case Overview
This unfair dismissal case is a decision by the Labor Relations Commission concerning a situation where the employer amended the rules of employment and retroactively applied the amended retirement-age provision to terminate the employment relationship of a worker who had continued to work even after passing the mandatory retirement age. The Gyeonggi Regional Labor Relations Commission comprehensively examined whether the applicant qualified as an employee under the Labor Standards Act, whether the notice of termination of the employment relationship constituted a dismissal, and whether such dismissal was justified.
In this case, the applicant held a certain position within the company but had entered into an employment contract and received wages without any separate executive appointment contract. While continuing to work beyond the mandatory retirement age, the applicant received a notice of termination of the employment relationship on the ground of an amendment to the rules of employment, and filed an application for remedy for unfair dismissal.
Ⅱ. Issues
The issues in this case were whether the measure of terminating the employment relationship by belatedly amending the rules of employment to apply the retirement-age provision to a person who had continued to work after already passing the retirement age constituted a “dismissal” of an “employee” under the Labor Standards Act, and whether such dismissal was justified.
More specifically, the core issues were:
(1) Whether the applicant was not merely an executive but an employee protected under the Labor Standards Act;
(2) Whether the termination should be viewed not as automatic retirement due to reaching retirement age, but as a dismissal based on the employer’s unilateral intent; and
(3) Whether reaching the retirement age alone constitutes a just cause for dismissal.
Ⅲ. Summary of the Labor Relations Commission’s Decision
The decision panel found that: the employer had only concluded an employment contract with the applicant and had not entered into any separate executive appointment or executive remuneration contract; the applicant was not a registered executive on the corporate registry and did not hold any shares in the company; and, in the course of performing duties, the applicant was subject to the employer’s direction and supervision and could not be regarded as an executive with independent managerial authority sufficient to negate employee status. Taking these factors together, the panel held that the applicant qualified as an employee under the Labor Standards Act.
Furthermore, the panel applied the legal principle articulated in Supreme Court precedents that, where a worker has continued to provide labor without a fixed term after passing the retirement age with the employer’s consent, the employment relationship cannot be terminated solely on the grounds of reaching the retirement age or old age; dismissal is only permissible where there is just cause under Article 23 of the Labor Standards Act. The panel held that, even if the employer used terms such as “retirement at mandatory age” or “automatic retirement” in form, retroactively amending the rules of employment after the worker had already passed the retirement age, applying the retirement-age provision, and notifying termination of the employment relationship constituted, in substance, a dismissal based on the employer’s unilateral intent. Reaching the retirement age itself could not be regarded as a just cause for dismissal, and no other grounds for dismissal were identified. Accordingly, the panel determined that the dismissal in this case was unfair.
Ⅳ. Practical Points (From the Employee’s Perspective)
Even if a worker holds a certain position in the company or uses the title of “executive,” if the worker has been working under the employer’s direction and supervision and receiving wages without a separate executive contract, the Labor Relations Commission or the courts may still recognize the worker as an employee under the Labor Standards Act. In addition, if the worker has continued to work with the company’s consent after already passing the retirement age, it is difficult for the employer to lawfully terminate the employment relationship solely on the ground that “the retirement age has passed,” and the worker may seek relief through an application for remedy for unfair dismissal.
If, while continuing to work after the retirement age, you receive notice of a change in the rules of employment or a unilateral “retirement at mandatory age” disposition, you should carefully check—regardless of the form or title of the notice—whether it is in substance a unilateral dismissal by the employer, whether there is just cause, and whether the grounds and timing of the dismissal have been clearly notified in writing.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s standpoint, where a worker who has already passed the retirement age continues to work without a fixed term with the company’s consent, the employer must clearly recognize that, from that point on, termination of the employment relationship is no longer an automatic retirement under the retirement-age provision, but requires just cause for dismissal as required under Article 23 of the Labor Standards Act, just as with other employees. The mere fact that “the retirement age has passed” will rarely suffice to establish the legitimacy of a dismissal; substantive grounds such as poor performance, disciplinary reasons, or satisfaction of the requirements for redundancy dismissal due to managerial reasons are necessary.
Furthermore, even when strengthening retirement-age provisions or adjusting their scope of application through amendments to the rules of employment, there is a high risk that retroactively and uniformly applying such amendments to workers who are already continuing to work beyond the retirement age, and thereby terminating their employment, will be found to constitute unfair dismissal. When amending the rules of employment, it is advisable to carefully design the process with respect to the consent of the employees’ representative, whether the change is disadvantageous, and the timing and scope of application, and to establish in advance a structure consistent with legal principles for workers continuing to work after retirement age, such as separate re-employment contracts or conversion to fixed-term contracts.
In light of these points, in cases where unfair dismissal, retirement age, and amendments to the rules of employment are intertwined, it is very important, from the initial stage, to consult with experts such as Labor Law Firm Law&, organize the facts, and thoroughly review the legal principles on employee status and continued employment after retirement age established by the Labor Relations Commission and Supreme Court precedents, in order to prevent and respond to disputes.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the applicant qualifies as an employee under the Labor Standards Act
(1) The employer concluded an employment contract with the worker and did not conclude any separate contract regarding appointment as an executive or executive remuneration;
(2) The worker was not a registered executive on the corporate registry and did not hold any shares in the company;
(3) It was difficult to view the worker as having had such independent authority in the performance of duties as to negate employee status;
In light of these factors, the worker qualified as an employee under the Labor Standards Act.
B. Whether the termination of the employment relationship constituted a dismissal
Notifying termination of the employment relationship by applying the retirement-age provision, introduced through an amendment to the rules of employment, to a worker who had continued to work after passing the retirement age constituted a dismissal.
C. Whether the dismissal was justified
Reaching the retirement age did not constitute a just cause for dismissal, and no other grounds for dismissal were identified.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
A. Whether the applicant qualifies as an employee under the Labor Standards Act
(1) The employer concluded an employment contract with the worker and did not conclude any separate contract regarding appointment as an executive or executive remuneration;
(2) The worker was not a registered executive on the corporate registry and did not hold any shares in the company;
(3) It was difficult to view the worker as having had such independent authority in the performance of duties as to negate employee status;
In light of these factors, the worker qualified as an employee under the Labor Standards Act.
B. Whether the termination of the employment relationship constituted a dismissal
Notifying termination of the employment relationship by applying the retirement-age provision, introduced through an amendment to the rules of employment, to a worker who had continued to work after passing the retirement age constituted a dismissal.
C. Whether the dismissal was justified
Reaching the retirement age did not constitute a just cause for dismissal, and no other grounds for dismissal were identified.
/
[See More Related Decisions]
- “Unfair Dismissal Decision on ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision on ‘Dismissal Rejected (Non-Appearance at Hearing)’” – Decision date: – Case number: Dismissed
- “Unfair Dismissal Decision on ‘No Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case number: Initial decision upheld
[Tags]
Unfair dismissal, employee status and application of retirement age (employees continuing to work after mandatory retirement), 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 part of Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ The previous article, “Unfair Dismissal Decision on ‘Abuse of Disciplinary Discretion (Compliance with Instructions in Management Rights Dispute)’,” can be viewed in a new window.
※ The list of decisions related to employee status and application of retirement age (employees continuing to work after mandatory retirement) can be viewed in the “Employee Status and Application of Retirement Age (Employees Continuing to Work After Mandatory Retirement) Related Decisions” section.
※ Korean version of this case: Korean article
[Case Information]
This case is an unfair dismissal decision that concluded with a full win for the employee on the issues of “employee status and application of retirement age (employees continuing to work after mandatory retirement).”
Decision Committee: Gyeonggi Regional Labor Relations Commission, 2025 Unfair Dismissal 9431 ○ ○ ○ Application for Remedy for Unfair Dismissal
Decision date: 2026.01.09 · Result: Fully upheld
Summary of key issues:
A. Whether the applicant qualifies as an “employee” under the Labor Standards Act
(1) The employer entered into an employment contract with the applicant and did not conclude any separate contract regarding appointment as an executive or remuneration for executives;
(2) The applicant was not a registered executive on the corporate registry and did not hold any shares in the company;
(3) It was difficult to view the applicant as having had such independent authority in the performance of duties as to negate employee status;
In light of these and other factors, …
1. Legal Implications
Ⅰ. Case Overview
This unfair dismissal case is a decision by the Labor Relations Commission concerning a situation where the employer amended the rules of employment and retroactively applied the amended retirement-age provision to terminate the employment relationship of a worker who had continued to work even after passing the mandatory retirement age. The Gyeonggi Regional Labor Relations Commission comprehensively examined whether the applicant qualified as an employee under the Labor Standards Act, whether the notice of termination of the employment relationship constituted a dismissal, and whether such dismissal was justified.
In this case, the applicant held a certain position within the company but had entered into an employment contract and received wages without any separate executive appointment contract. While continuing to work beyond the mandatory retirement age, the applicant received a notice of termination of the employment relationship on the ground of an amendment to the rules of employment, and filed an application for remedy for unfair dismissal.
Ⅱ. Issues
The issues in this case were whether the measure of terminating the employment relationship by belatedly amending the rules of employment to apply the retirement-age provision to a person who had continued to work after already passing the retirement age constituted a “dismissal” of an “employee” under the Labor Standards Act, and whether such dismissal was justified.
More specifically, the core issues were:
(1) Whether the applicant was not merely an executive but an employee protected under the Labor Standards Act;
(2) Whether the termination should be viewed not as automatic retirement due to reaching retirement age, but as a dismissal based on the employer’s unilateral intent; and
(3) Whether reaching the retirement age alone constitutes a just cause for dismissal.
Ⅲ. Summary of the Labor Relations Commission’s Decision
The decision panel found that: the employer had only concluded an employment contract with the applicant and had not entered into any separate executive appointment or executive remuneration contract; the applicant was not a registered executive on the corporate registry and did not hold any shares in the company; and, in the course of performing duties, the applicant was subject to the employer’s direction and supervision and could not be regarded as an executive with independent managerial authority sufficient to negate employee status. Taking these factors together, the panel held that the applicant qualified as an employee under the Labor Standards Act.
Furthermore, the panel applied the legal principle articulated in Supreme Court precedents that, where a worker has continued to provide labor without a fixed term after passing the retirement age with the employer’s consent, the employment relationship cannot be terminated solely on the grounds of reaching the retirement age or old age; dismissal is only permissible where there is just cause under Article 23 of the Labor Standards Act. The panel held that, even if the employer used terms such as “retirement at mandatory age” or “automatic retirement” in form, retroactively amending the rules of employment after the worker had already passed the retirement age, applying the retirement-age provision, and notifying termination of the employment relationship constituted, in substance, a dismissal based on the employer’s unilateral intent. Reaching the retirement age itself could not be regarded as a just cause for dismissal, and no other grounds for dismissal were identified. Accordingly, the panel determined that the dismissal in this case was unfair.
Ⅳ. Practical Points (From the Employee’s Perspective)
Even if a worker holds a certain position in the company or uses the title of “executive,” if the worker has been working under the employer’s direction and supervision and receiving wages without a separate executive contract, the Labor Relations Commission or the courts may still recognize the worker as an employee under the Labor Standards Act. In addition, if the worker has continued to work with the company’s consent after already passing the retirement age, it is difficult for the employer to lawfully terminate the employment relationship solely on the ground that “the retirement age has passed,” and the worker may seek relief through an application for remedy for unfair dismissal.
If, while continuing to work after the retirement age, you receive notice of a change in the rules of employment or a unilateral “retirement at mandatory age” disposition, you should carefully check—regardless of the form or title of the notice—whether it is in substance a unilateral dismissal by the employer, whether there is just cause, and whether the grounds and timing of the dismissal have been clearly notified in writing.
Ⅴ. Practical Points (From the Employer’s Perspective)
From the employer’s standpoint, where a worker who has already passed the retirement age continues to work without a fixed term with the company’s consent, the employer must clearly recognize that, from that point on, termination of the employment relationship is no longer an automatic retirement under the retirement-age provision, but requires just cause for dismissal as required under Article 23 of the Labor Standards Act, just as with other employees. The mere fact that “the retirement age has passed” will rarely suffice to establish the legitimacy of a dismissal; substantive grounds such as poor performance, disciplinary reasons, or satisfaction of the requirements for redundancy dismissal due to managerial reasons are necessary.
Furthermore, even when strengthening retirement-age provisions or adjusting their scope of application through amendments to the rules of employment, there is a high risk that retroactively and uniformly applying such amendments to workers who are already continuing to work beyond the retirement age, and thereby terminating their employment, will be found to constitute unfair dismissal. When amending the rules of employment, it is advisable to carefully design the process with respect to the consent of the employees’ representative, whether the change is disadvantageous, and the timing and scope of application, and to establish in advance a structure consistent with legal principles for workers continuing to work after retirement age, such as separate re-employment contracts or conversion to fixed-term contracts.
In light of these points, in cases where unfair dismissal, retirement age, and amendments to the rules of employment are intertwined, it is very important, from the initial stage, to consult with experts such as Labor Law Firm Law&, organize the facts, and thoroughly review the legal principles on employee status and continued employment after retirement age established by the Labor Relations Commission and Supreme Court precedents, in order to prevent and respond to disputes.
2. Matters Decided
A. Case Overview and Procedural History
A. Whether the applicant qualifies as an employee under the Labor Standards Act
(1) The employer concluded an employment contract with the worker and did not conclude any separate contract regarding appointment as an executive or executive remuneration;
(2) The worker was not a registered executive on the corporate registry and did not hold any shares in the company;
(3) It was difficult to view the worker as having had such independent authority in the performance of duties as to negate employee status;
In light of these factors, the worker qualified as an employee under the Labor Standards Act.
B. Whether the termination of the employment relationship constituted a dismissal
Notifying termination of the employment relationship by applying the retirement-age provision, introduced through an amendment to the rules of employment, to a worker who had continued to work after passing the retirement age constituted a dismissal.
C. Whether the dismissal was justified
Reaching the retirement age did not constitute a just cause for dismissal, and no other grounds for dismissal were identified.
3. Summary of the Decision
A. Summary of the Labor Relations Commission’s Reasoning
A. Whether the applicant qualifies as an employee under the Labor Standards Act
(1) The employer concluded an employment contract with the worker and did not conclude any separate contract regarding appointment as an executive or executive remuneration;
(2) The worker was not a registered executive on the corporate registry and did not hold any shares in the company;
(3) It was difficult to view the worker as having had such independent authority in the performance of duties as to negate employee status;
In light of these factors, the worker qualified as an employee under the Labor Standards Act.
B. Whether the termination of the employment relationship constituted a dismissal
Notifying termination of the employment relationship by applying the retirement-age provision, introduced through an amendment to the rules of employment, to a worker who had continued to work after passing the retirement age constituted a dismissal.
C. Whether the dismissal was justified
Reaching the retirement age did not constitute a just cause for dismissal, and no other grounds for dismissal were identified.
/
[See More Related Decisions]
- “Unfair Dismissal Decision on ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
- “Unfair Dismissal Decision on ‘Dismissal Rejected (Non-Appearance at Hearing)’” – Decision date: – Case number: Dismissed
- “Unfair Dismissal Decision on ‘No Formation of Hiring Commitment (Absence of Offer Letter)’” – Decision date: – Case number: Initial decision upheld
[Tags]
Unfair dismissal, employee status and application of retirement age (employees continuing to work after mandatory retirement), 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 part of Labor Law Firm Law&’s “Unfair Dismissal Decisions” series.
※ The previous article, “Unfair Dismissal Decision on ‘Abuse of Disciplinary Discretion (Compliance with Instructions in Management Rights Dispute)’,” can be viewed in a new window.
※ The list of decisions related to employee status and application of retirement age (employees continuing to work after mandatory retirement) can be viewed in the “Employee Status and Application of Retirement Age (Employees Continuing to Work After Mandatory Retirement) Related Decisions” section.
※ Korean version of this case: Korean article
