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Jipyong News|Newsletter_Labor & Employment

[Case Highlight 4] Successful representation on processing of request for reinstatement during reinstatement period following leave

2020.09.21

An employee at an auto-manufacturing and sales company was arrested and imprisoned on a criminal charge while on leave. The employee did not request for reinstatement by the expiration of the period of leave and was dismissed. The employee then filed a claim seeking declaration of invalidation, arguing that the disposition of the dismissal was wrongful dismissal. 
 
Jipyong represented the employer and explained that the dismissal was not invalid in view of the following: the employer, along with the department head, repeatedly advised the employee of the reinstatement procedures, yet the employee did not implement the procedures; although the employee claimed that the employee requested for leave on the ground of the criminal charge to the department head via the employee’s partner, this claim is contrary to the facts based on the text messages sent by the department head at the time or the employee’s refusal of a visit from the department head; and the internal attendance regulations providing for the reinstatement procedures were based on the relevant provisions of the collective agreement. 
 
The court of first instance accepted these arguments of the employer, and found that the dismissal was justified on the ground that although the dismissal by the employer was a termination, the request for the reinstatement within the reinstatement period shall be respected within the scope of the socially acceptable standards and the fact the employee did not request for the reinstatement within the reinstatement period shall be deemed a legitimate reason for the termination. The court therefore dismissed the case, and the employee appealed. The appellate court dismissed the appeal on the ground that the employee did not express any intent for reinstatement and the employer needed to strictly manage for the request for the reinstatement to be made within a certain period upon the end of the leave for the purpose of human resources and financial management given that the employer paid the employee on leave a part of the ordinary wage and the entire amount of the allowances during the period of leave.

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