Rising tide: Termination harassment claims in Korea
Claims of harassment during employee termination processes present significant challenges for employers due to robust legal protections.
HR Policy Global view: Korean law demands "just cause" for termination, requiring specific evidence and procedures. Recently, employees facing potential separation have claimed valid HR processes as harassment, seeking protection under anti-retaliation laws. Employers are advised to take additional guidance when HR actions may lead to separation.
The Bigger Picture: Attendees at the recent HR Policy Global Asia Pacific Summit were updated by Attorney Marina Moon of Kim & Chang Singapore on this growing trend.
In Korea, Workplace Harassment is defined as “An act that causes physical or mental suffering or worsens the working conditions/environment of another employee, by taking advantage of the employer or employee's superior status or relationship within the workplace, beyond the appropriate scope of work.” (translated – Article 76-2, Labor Standards Act).
Korean laws are notably strict and precise regarding the dismissal of employees for 'just cause,' placing the responsibility on employers to clearly demonstrate the rationale. Consequently, HR procedures involving performance management, disciplinary inquiries, job role adjustments, and discussions on voluntary exits necessitate extensive documentation, interaction over long time periods, and heavy procedural management. It is these requirements, considered within the ‘appropriate scope of work’, which often form the basis of harassment claims.
In the event of a claim of workplace harassment, the employer is prohibited from taking any adverse action with may be considered retaliatory in nature. Additionally, there is a requirement to launch a full and immediate investigation of the claims.
It is evident how the employer-initiated HR procedures (such as performance management) can become derailed by an employee who claims the actions constitute workplace harassment.
Tips for Employers
Establish and communicate clear standards of performance, behaviour, and HR practices for employees.
Ensure procedural fairness in HR activities and maintain thorough documentation throughout.
Maintain consultation and communication with employees and their representatives
Engage counsel (internal and/or external) to review compliance and mitigate risks
Michelle Swinden
Executive Director, Asia-Pacific, HR Policy Global
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