[Case Information] This case is a decision in which the employee partially prevailed on the issue of “existence of dismissal (disciplinary dismissal for unauthorized absence).” Decision date: 2026-07-31 · Labor Relations Commission: Gyeongbuk Regional Labor Relations Commission · Case No.: 2026BuHae570 Key issue summary: A. (Primary application) Whether Dismissal 1 exists There is insufficient basis to find that the employment relationship was definitively terminated by the employer’s unilateral intent, and therefore it is difficult to conclude that Dismissal 1 exists. 1. Legal Implications Ⅰ. Case Overview This case concerns an application for relief filed with the Labor Relations Commission by an employee claiming unfair dismissal. It is similar to cases frequently encountered by Labor Law Firm Law& in collective redundancy and disciplinary dismissal disputes. The employer notified the employee of dismissal on the ground of non-attendance, while the employee contested both the existence and the legitimacy of the dismissal and sought monetary compensation instead of reinstatement to the original position. In Case No. 2026BuHae570, the Gyeongbuk Regional Labor Relations Commission first examined whether the first dismissal (Dismissal 1), allegedly effected by the employer’s unilateral intent, actually existed. It then sequentially reviewed, on a secondary basis, the grounds for disciplinary action, the procedures, and the appropriateness of the level of discipline for the second dismissal (Dismissal 2) asserted in the alternative. Ⅱ. Summary of Issues The issues in this case are: “(i) whether the first unfair dismissal can be regarded as actually having occurred; (ii) whether, in the second disciplinary dismissal, the imposition of dismissal as a disciplinary measure is justified where the ground for discipline (non-attendance) and lawful procedure are acknowledged but the employer bears a substantial portion of responsibility for the circumstances leading to the non-attendance; and (iii) whether, where the employee seeks monetary compensation instead of reinstatement, the Labor Relations Commission may include such monetary compensation in its remedial order.” Ⅲ. Summary of the Labor Relations Commission’s Findings The panel in this case found that there was insufficient evidence to conclude that the employment relationship had been definitively terminated by the employer’s unilateral intent, and that, in light of established case law defining dismissal as an act by which the employer unilaterally terminates the employment relationship irrespective of the employee’s intent, it was difficult to affirm the existence of Dismissal 1. Accordingly, with respect to Dismissal 1, which was asserted as the primary claim, the panel held that the “dismissal itself cannot be deemed to exist” and therefore did not proceed to examine whether it constituted an unfair dismissal. By contrast, regarding Dismissal 2, which was contested in the alternative, the panel held that the employee’s non-attendance constituted a breach of the duty of faithful service or unauthorized absence and thus a valid ground for discipline; that, as the employer had afforded the employee an opportunity to explain in accordance with the work rules and had notified the grounds and timing of dismissal in writing, it was difficult to find any procedural illegality under Article 27 of the Labor Standards Act and relevant case law; but that, notwithstanding this, the employer bore a substantial portion of responsibility for the circumstances leading to the non-attendance, rendering the level of discipline (dismissal) excessively severe. On this basis, the panel held that although the grounds and procedures for Dismissal 2 were lawful, the dismissal nonetheless constituted an unfair dismissal due to excessive disciplinary measure. In addition, taking into account that the employee did not wish to be reinstated but instead sought monetary compensation, and that under the Labor Relations Commission Act a monetary compensation order may be issued where reinstatement is practically difficult or inappropriate, the panel calculated the amount of monetary compensation at KRW 4,601,301 according to a specific formula and included this in its remedial order. Ⅳ. Practical Points (From the Employee’s Perspective) From the employee’s perspective, it is important not to treat the employer’s words alone as constituting dismissal, but to secure objective materials—such as text messages, written notices, and recordings—that can prove that the employment relationship was in fact “definitively terminated” by the employer’s unilateral intent. Furthermore, even where there has been unauthorized absence or non-attendance, if the employer bears some responsibility for how it occurred, it may be more advantageous in practice to acknowledge the grounds for discipline but focus on arguing and proving that dismissal is excessively severe (excessive disciplinary measure), rather than wholly denying the existence of grounds for discipline. Where actual reinstatement is difficult or not desired, it is also helpful, from the Labor Relations Commission stage, to clearly request monetary compensation in lieu of reinstatement and to submit organized information on one’s wage level, length of service, and the circumstances of the dismissal, as this assists in calculating the amount of monetary compensation to be ordered. Ⅴ. Practical Points (From the Employer’s / Company’s Perspective) From the employer’s perspective, even where unauthorized absence or non-attendance has occurred, if the employer bears any degree of responsibility arising from its directions and orders, provision of working conditions, or personnel measures, it is advisable to first consider stepwise disciplinary measures such as warnings, pay cuts, or suspension rather than proceeding directly to dismissal. Although the determination of the level of discipline falls within the employer’s discretion, case law assesses the circumstances of the misconduct, the degree of intent or negligence, and whether the company bears any responsibility, and will find dismissal to be unfair if it is excessively severe. Accordingly, it is necessary at the disciplinary committee stage to systematically organize such extenuating circumstances. To avoid disputes over the very existence of a dismissal, the employer should, in accordance with Article 27 of the Labor Standards Act, deliver a written notice clearly stating the grounds and timing of dismissal and retain records demonstrating that a genuine opportunity to explain was provided (such as attendance requests, minutes of meetings, written explanations, etc.). Where the employee does not wish to return to work and instead seeks monetary compensation, the employer should, from the initial response stage, comprehensively consider litigation and dispute costs and organizational management, bearing in mind that the Labor Relations Commission may issue a monetary compensation order. This unfair dismissal decision by the Gyeongbuk Regional Labor Relations Commission illustrates, as Labor Law Firm Law& repeatedly emphasizes in consultations, how important it is to separately examine the two layers of “proof of the existence of dismissal” and “appropriateness of the level of discipline.” 2. Matters Decided A. Case Overview and Procedural History This is a decision in which the primary application concerning Dismissal 1 was rejected on the ground that Dismissal 1 did not exist, while the secondary application concerning Dismissal 2 was upheld in part: although the grounds for discipline were recognized and the disciplinary procedures were lawful, the level of discipline was found to be excessively severe and thus constituted unfair dismissal, and a monetary compensation order was included in the remedial order. 3. Summary of Decision A. Summary of the Labor Relations Commission’s Findings a. (Primary application) Whether Dismissal 1 exists There appears to be insufficient basis to recognize that the employment relationship was definitively terminated by the employer’s unilateral intent, and therefore it is difficult to conclude that Dismissal 1 exists. Accordingly, there is no need to further examine the remaining issues premised on the existence of Dismissal 1. b. (Secondary application) Whether Dismissal 2 is justified The employee’s non-attendance constitutes a breach of the duty of faithful service or unauthorized absence and is therefore recognized as a legitimate ground for discipline. As the employer afforded an opportunity to explain in accordance with the procedures set out in the work rules and notified the grounds and timing of dismissal in writing, it is also difficult to find any procedural illegality. However, as the employer bears a substantial portion of responsibility for the employee’s non-attendance, the level of discipline is deemed excessively severe. Therefore, although the grounds for discipline in Dismissal 2 are recognized and the disciplinary procedures are lawful, the dismissal is unfair due to excessive disciplinary measure. c. Acceptance of the Monetary Compensation Order As the employee seeks monetary compensation in lieu of reinstatement to the original position, this request is accepted, and the amount of monetary compensation is calculated at KRW 4,601,301. [See More Related Decisions] - “Unfair Dismissal Decision on ‘Relief Interest · Refusal to Rehire (Post-Retirement Fixed-Term Employment)’” - “Unfair Dismissal Decision on ‘Excessive Disciplinary Measure (Negligent Supervision and Management)’” - “Unfair Dismissal Decision on ‘Disciplinary Measure (Participation in Services for Another Institution)’” [Tags] Unfair dismissal, existence of dismissal (disciplinary dismissal for unauthorized absence), disciplinary dismissal, unauthorized 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 Labor Law Firm Law&’s “Unfair Dismissal Decisions” series. ※ The previous article, “Unfair Dismissal Decision on ‘Unauthorized Absence (Failure to Return for More Than 3 Weeks)’,” can be viewed in a new window. ※ A list of decisions related to the existence of dismissal (disciplinary dismissal for unauthorized absence) can be found in the “List of Decisions on Existence of Dismissal (Disciplinary Dismissal for Unauthorized Absence).” ※ Korean version of this case: Korean article