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Unfair Dismissal Case on the “Existence of Dismissal (Resignation Recommendation · Unauthorised Absence)” (Unfair Dismissal 437)
- Date2026/05/08 04:05
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[Case Information]
This case is a decision in which the initial decision was upheld on the issue of the “existence of dismissal (resignation recommendation · unauthorised absence).”
Decision body: Central Labor Relations Commission 2025Buhae9192 ○ ○ ○ Application for Re‑examination for Remedy of Unfair Dismissal
2026.03.27 · Result: Initial decision upheld
Summary of key issue: Whether a dismissal existed
The employee claimed that the employer orally notified him on 24 and 28 April 2025 of dismissal effective 31 May 2025. However, (i) at that time the employer merely suggested that, if the work was too difficult, the employee should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; (ii) the employer never notified the employee of dismissal and instead sent a content‑certified letter urging him to work faithfully...
1. Legal Implications
Ⅰ. Case Overview
In this unfair dismissal re‑examination case before the Central Labor Relations Commission, the employee applied for a remedy for unfair dismissal, alleging that the employer had orally notified him of dismissal. The Labor Relations Commission, however, denied that any dismissal existed at all. Taking into account the circumstances surrounding the employee’s unauthorised absence, the company’s sending of a content‑certified letter, and its efforts to encourage the employee to return to work, the Commission held that the employment contract ended not by dismissal but by the employee’s unauthorised absence.
In this re‑examination for remedy of unfair dismissal, the employee asserted before the Commission that a dismissal had occurred, but ultimately the employer’s position was accepted and the initial decision was upheld.
Ⅱ. Summary of Issues
The issue in this case was: “In a situation where the employer said, ‘If the work is too difficult, consider resigning,’ and the employee then continued to be absent without permission, did a dismissal contrary to the employee’s will exist?”
In other words, the core issue was the criteria for determining whether the termination of the employment relationship was caused by a unilateral intention of the employer (dismissal), or whether it was closer to the employee’s voluntary unauthorised absence/resignation.
Ⅲ. Key Findings of the Labor Relations Commission
The panel in this case found that the employer, at the time, merely suggested to the employee that, if the work was too difficult, he should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; that the employer instead sent a content‑certified letter urging the employee to work faithfully; and that, despite the employee’s own assertion of “dismissal as of 31 May 2025,” he continued to report to work and provide labor until 19 June 2025.
The panel further noted that the employee did not report to work without any particular reason from 20 June 2025; that the employer repeatedly encouraged him to return to work and notified him that a disciplinary committee would be convened due to unauthorised absence, yet the unauthorised absence continued; that the employee stated that his unauthorised absence was based on the recommendation of his attending physician, making it appear that his absence was based on his own voluntary judgment; and that the complaint the employee filed against the employer was closed with a finding of “no violation of law.”
On this basis, the panel held that no dismissal disposition existed in this case and that the employment contract between the parties ended due to the employee’s unauthorised absence, making it difficult to find that there was an unfair dismissal contrary to the employee’s will.
[Summary of the Labor Relations Commission’s Reasoning – Legal Analysis]
The Labor Relations Commission proceeded from the premise that, under the Labor Standards Act, “dismissal” is an act by which the employer unilaterally terminates the employment relationship regardless of the employee’s will, and that Article 27 of the Labor Standards Act requires written notice of the reasons for dismissal and the timing of dismissal in order to clarify whether and when a dismissal has occurred.
In this case, the employer did not issue any written notice premised on dismissal, and instead only sent a content‑certified letter requesting faithful performance of duties. In light of this, and the fact that the employee continued to report to work for a considerable period even after the alleged dismissal date, the Commission found it difficult, objectively, to recognize any “expression of intent to dismiss.” This was the crux of its reasoning.
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, rather than concluding that you have been “dismissed” based solely on the employer’s words or the general atmosphere, you should carefully check objective circumstances such as whether there was written notice of dismissal (e.g., a dismissal notice), and whether you actually continued to report to work and provide labor thereafter. If you allege an oral dismissal but fail to secure evidence clearly showing the employer’s expression of intent to dismiss—such as the content of the conversation at the time, recordings, or text messages—the Labor Relations Commission may deny that a dismissal existed at all.
In addition, if you must stop reporting to work due to health issues or a physician’s recommendation, you should leave a record of communication with the company by submitting a medical certificate, applying for sick leave, and following other procedures. Doing so increases the likelihood that your absence will later be recognized as justified rather than as unauthorised absence.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, ambiguous remarks such as “If it’s too hard, just quit” can later become the starting point of an unfair dismissal dispute. When recommending resignation or conducting counseling, you should clearly explain—and keep a record—that you do not intend to dismiss the employee and that any voluntary resignation is entirely the employee’s decision.
Furthermore, if an employee fails to report to work for an extended period, it is important to encourage the employee to return to work in writing (e.g., via content‑certified mail), inform the employee of the possibility of disciplinary action for unauthorised absence, and then conduct the disciplinary process in a lawful manner.
Because the Labor Relations Commission places significant weight, in determining whether a dismissal exists, on objective circumstances such as the presence or absence of written notice, whether the employer encouraged the employee to return to work, and the actual period during which labor was provided, companies should systematically manage such measures in written form to reduce unnecessary risks in unfair dismissal disputes.
This decision is a useful example for those preparing for unfair dismissal cases and Labor Relations Commission remedy procedures, as it clearly illustrates the evidentiary structure and factors considered in determining whether a case involves dismissal or voluntary resignation/unauthorised absence. In similar cases, it is advisable to consult in advance with a specialized organization such as Labor Law Firm Law& to organize the facts and develop an evidence‑gathering strategy.
2. Matters Decided
A. Case Overview and Procedural History
Whether a dismissal existed
The employee claimed that the employer orally notified him on 24 and 28 April 2025 of dismissal effective 31 May 2025. However, (i) at that time the employer merely suggested that, if the work was too difficult, the employee should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; (ii) the employer never notified the employee of dismissal and instead sent a content‑certified letter urging him to work faithfully; (iii) despite asserting dismissal as of 31 May 2025, the employee continued to report to the company and provide labor until 19 June 2025, and then failed to report to work without any particular reason from 20 June 2025; (iv) the employer, after repeatedly encouraging him to return to work, notified him that a disciplinary committee would be convened due to unauthorised absence, yet the employee’s unauthorised absence continued; (v) the employee stated that his unauthorised absence was based on the recommendation of his attending physician, etc., making it appear that he voluntarily chose not to report to work; and (vi) the complaint the employee filed against the employer was closed with a finding of “no violation of law.”
In light of these circumstances, the employment contract between the parties is deemed to have ended due to the employee’s unauthorised absence, and it is difficult to find that there was a dismissal contrary to the employee’s will.
3. Summary of Decision
A. Key Findings of the Labor Relations Commission
Whether a dismissal existed
The employee claimed that the employer orally notified him on 24 and 28 April 2025 of dismissal effective 31 May 2025. However, (i) at that time the employer merely suggested that, if the work was too difficult, the employee should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; (ii) the employer never notified the employee of dismissal and instead sent a content‑certified letter urging him to work faithfully; (iii) despite asserting dismissal as of 31 May 2025, the employee continued to report to the company and provide labor until 19 June 2025, and then failed to report to work without any particular reason from 20 June 2025; (iv) the employer, after repeatedly encouraging him to return to work, notified him that a disciplinary committee would be convened due to unauthorised absence, yet the employee’s unauthorised absence continued; (v) the employee stated that his unauthorised absence was based on the recommendation of his attending physician, etc., making it appear that he voluntarily chose not to report to work; and (vi) the complaint the employee filed against the employer was closed with a finding of “no violation of law.”
In light of these circumstances, the employment contract between the parties is deemed to have ended due to the employee’s unauthorised absence, and it is difficult to find that there was a dismissal contrary to the employee’s will. /
[See More Related Decisions]
- “Unfair Dismissal Decision on ‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’”
- “Unfair Dismissal Decision on ‘Dismissal of Application (Non‑appearance at Hearing)’” – Date of decision: – Case number: Dismissed
- “Unfair Dismissal Decision on ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
[Tags]
Unfair dismissal, existence of dismissal (resignation recommendation · unauthorised absence), unauthorised absence, 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 the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision on ‘Defect in Written Notice (Monetary Compensation After Reinstatement Order)’,” in a new window.
※ A list of decisions related to the existence of dismissal (resignation recommendation · unauthorised absence) can be viewed together in the “List of Decisions on the Existence of Dismissal (Resignation Recommendation · Unauthorised Absence).”
※ Korean version of this case: Korean article
This case is a decision in which the initial decision was upheld on the issue of the “existence of dismissal (resignation recommendation · unauthorised absence).”
Decision body: Central Labor Relations Commission 2025Buhae9192 ○ ○ ○ Application for Re‑examination for Remedy of Unfair Dismissal
2026.03.27 · Result: Initial decision upheld
Summary of key issue: Whether a dismissal existed
The employee claimed that the employer orally notified him on 24 and 28 April 2025 of dismissal effective 31 May 2025. However, (i) at that time the employer merely suggested that, if the work was too difficult, the employee should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; (ii) the employer never notified the employee of dismissal and instead sent a content‑certified letter urging him to work faithfully...
1. Legal Implications
Ⅰ. Case Overview
In this unfair dismissal re‑examination case before the Central Labor Relations Commission, the employee applied for a remedy for unfair dismissal, alleging that the employer had orally notified him of dismissal. The Labor Relations Commission, however, denied that any dismissal existed at all. Taking into account the circumstances surrounding the employee’s unauthorised absence, the company’s sending of a content‑certified letter, and its efforts to encourage the employee to return to work, the Commission held that the employment contract ended not by dismissal but by the employee’s unauthorised absence.
In this re‑examination for remedy of unfair dismissal, the employee asserted before the Commission that a dismissal had occurred, but ultimately the employer’s position was accepted and the initial decision was upheld.
Ⅱ. Summary of Issues
The issue in this case was: “In a situation where the employer said, ‘If the work is too difficult, consider resigning,’ and the employee then continued to be absent without permission, did a dismissal contrary to the employee’s will exist?”
In other words, the core issue was the criteria for determining whether the termination of the employment relationship was caused by a unilateral intention of the employer (dismissal), or whether it was closer to the employee’s voluntary unauthorised absence/resignation.
Ⅲ. Key Findings of the Labor Relations Commission
The panel in this case found that the employer, at the time, merely suggested to the employee that, if the work was too difficult, he should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; that the employer instead sent a content‑certified letter urging the employee to work faithfully; and that, despite the employee’s own assertion of “dismissal as of 31 May 2025,” he continued to report to work and provide labor until 19 June 2025.
The panel further noted that the employee did not report to work without any particular reason from 20 June 2025; that the employer repeatedly encouraged him to return to work and notified him that a disciplinary committee would be convened due to unauthorised absence, yet the unauthorised absence continued; that the employee stated that his unauthorised absence was based on the recommendation of his attending physician, making it appear that his absence was based on his own voluntary judgment; and that the complaint the employee filed against the employer was closed with a finding of “no violation of law.”
On this basis, the panel held that no dismissal disposition existed in this case and that the employment contract between the parties ended due to the employee’s unauthorised absence, making it difficult to find that there was an unfair dismissal contrary to the employee’s will.
[Summary of the Labor Relations Commission’s Reasoning – Legal Analysis]
The Labor Relations Commission proceeded from the premise that, under the Labor Standards Act, “dismissal” is an act by which the employer unilaterally terminates the employment relationship regardless of the employee’s will, and that Article 27 of the Labor Standards Act requires written notice of the reasons for dismissal and the timing of dismissal in order to clarify whether and when a dismissal has occurred.
In this case, the employer did not issue any written notice premised on dismissal, and instead only sent a content‑certified letter requesting faithful performance of duties. In light of this, and the fact that the employee continued to report to work for a considerable period even after the alleged dismissal date, the Commission found it difficult, objectively, to recognize any “expression of intent to dismiss.” This was the crux of its reasoning.
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, rather than concluding that you have been “dismissed” based solely on the employer’s words or the general atmosphere, you should carefully check objective circumstances such as whether there was written notice of dismissal (e.g., a dismissal notice), and whether you actually continued to report to work and provide labor thereafter. If you allege an oral dismissal but fail to secure evidence clearly showing the employer’s expression of intent to dismiss—such as the content of the conversation at the time, recordings, or text messages—the Labor Relations Commission may deny that a dismissal existed at all.
In addition, if you must stop reporting to work due to health issues or a physician’s recommendation, you should leave a record of communication with the company by submitting a medical certificate, applying for sick leave, and following other procedures. Doing so increases the likelihood that your absence will later be recognized as justified rather than as unauthorised absence.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, ambiguous remarks such as “If it’s too hard, just quit” can later become the starting point of an unfair dismissal dispute. When recommending resignation or conducting counseling, you should clearly explain—and keep a record—that you do not intend to dismiss the employee and that any voluntary resignation is entirely the employee’s decision.
Furthermore, if an employee fails to report to work for an extended period, it is important to encourage the employee to return to work in writing (e.g., via content‑certified mail), inform the employee of the possibility of disciplinary action for unauthorised absence, and then conduct the disciplinary process in a lawful manner.
Because the Labor Relations Commission places significant weight, in determining whether a dismissal exists, on objective circumstances such as the presence or absence of written notice, whether the employer encouraged the employee to return to work, and the actual period during which labor was provided, companies should systematically manage such measures in written form to reduce unnecessary risks in unfair dismissal disputes.
This decision is a useful example for those preparing for unfair dismissal cases and Labor Relations Commission remedy procedures, as it clearly illustrates the evidentiary structure and factors considered in determining whether a case involves dismissal or voluntary resignation/unauthorised absence. In similar cases, it is advisable to consult in advance with a specialized organization such as Labor Law Firm Law& to organize the facts and develop an evidence‑gathering strategy.
2. Matters Decided
A. Case Overview and Procedural History
Whether a dismissal existed
The employee claimed that the employer orally notified him on 24 and 28 April 2025 of dismissal effective 31 May 2025. However, (i) at that time the employer merely suggested that, if the work was too difficult, the employee should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; (ii) the employer never notified the employee of dismissal and instead sent a content‑certified letter urging him to work faithfully; (iii) despite asserting dismissal as of 31 May 2025, the employee continued to report to the company and provide labor until 19 June 2025, and then failed to report to work without any particular reason from 20 June 2025; (iv) the employer, after repeatedly encouraging him to return to work, notified him that a disciplinary committee would be convened due to unauthorised absence, yet the employee’s unauthorised absence continued; (v) the employee stated that his unauthorised absence was based on the recommendation of his attending physician, etc., making it appear that he voluntarily chose not to report to work; and (vi) the complaint the employee filed against the employer was closed with a finding of “no violation of law.”
In light of these circumstances, the employment contract between the parties is deemed to have ended due to the employee’s unauthorised absence, and it is difficult to find that there was a dismissal contrary to the employee’s will.
3. Summary of Decision
A. Key Findings of the Labor Relations Commission
Whether a dismissal existed
The employee claimed that the employer orally notified him on 24 and 28 April 2025 of dismissal effective 31 May 2025. However, (i) at that time the employer merely suggested that, if the work was too difficult, the employee should consider resigning, which is difficult to regard as an immediate expression of intent to dismiss; (ii) the employer never notified the employee of dismissal and instead sent a content‑certified letter urging him to work faithfully; (iii) despite asserting dismissal as of 31 May 2025, the employee continued to report to the company and provide labor until 19 June 2025, and then failed to report to work without any particular reason from 20 June 2025; (iv) the employer, after repeatedly encouraging him to return to work, notified him that a disciplinary committee would be convened due to unauthorised absence, yet the employee’s unauthorised absence continued; (v) the employee stated that his unauthorised absence was based on the recommendation of his attending physician, etc., making it appear that he voluntarily chose not to report to work; and (vi) the complaint the employee filed against the employer was closed with a finding of “no violation of law.”
In light of these circumstances, the employment contract between the parties is deemed to have ended due to the employee’s unauthorised absence, and it is difficult to find that there was a dismissal contrary to the employee’s will. /
[See More Related Decisions]
- “Unfair Dismissal Decision on ‘Expression of Intent to Resign (Resignation Remark in Telephone Call)’”
- “Unfair Dismissal Decision on ‘Dismissal of Application (Non‑appearance at Hearing)’” – Date of decision: – Case number: Dismissed
- “Unfair Dismissal Decision on ‘Failure to Meet Requirements for Redundancy Dismissal (Workout Company)’”
[Tags]
Unfair dismissal, existence of dismissal (resignation recommendation · unauthorised absence), unauthorised absence, 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 the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ You can view the previous article, “Unfair Dismissal Decision on ‘Defect in Written Notice (Monetary Compensation After Reinstatement Order)’,” in a new window.
※ A list of decisions related to the existence of dismissal (resignation recommendation · unauthorised absence) can be viewed together in the “List of Decisions on the Existence of Dismissal (Resignation Recommendation · Unauthorised Absence).”
※ Korean version of this case: Korean article
