Answer:
- In case of applying the disciplinary form of dismissal for relapse, is such relapse required to be the same as the previous disciplined offence?
Pursuant to Article 125.2 of the Labour Code, relapse will be construed as the case where the Employee repeats the offence that has been disciplined and not yet acquitted of discipline under Article 126 of the Labour Code. Therefore, the Employer may only discipline the Employee in the form of dismissal if the Employee repeats the offence that has been disciplined in the previous form of extending pay raise period and still stay within the period of being not yet acquitted (namely, six months from the date of issuance of the decision to extend pay raise period) or in the form of removal from office (within 3 years of the date of issuing the removal decision) as prescribed by the ILR that has been registered with the competent labour management State agency.
In addition, under Article 125 of the Labour Code, a relapse only applies to cases of disciplinary action in the form of dismissal. Moreover, pursuant to the provision on the duration of discipline acquittal in Article 126.1 of the Labour Code, 3 months after being reprimanded, 6 months after having the pay raise period extended or 3 years after being removed from office from the date of the decision, if there is no relapse of violations as prescribed in the ILR, the Employee is automatically acquitted.
2. The ILR stipulate that “an Employee will be disciplined in the form of extending pay raise period if the Employee commits a relapse by causing another offence for which the Employee has been reprimanded for the most recent six months regardless of whether such offence is the same as the previous one”. Is the said ILR stipulation against the law?
As analysed above, a relapse must be interpreted as a repetition of the same offence that was previously disciplined and not yet acquitted. Therefore, the word “relapse” will not apply where the previous offence and the current offence are not the same. Furthermore, the duration of LD acquittal for the disciplinary action of reprimand is 3 months[1]. Accordingly, the ILR stipulation by the Employer that “an Employee will be disciplined in the form of extending pay raise period if the Employee commits a relapse by causing another offence due to which the Employee has been reprimanded for the most recent six months regardless of whether such offence is the same as the previous one” is not in accordance with the labour law.
[1] Article 126.1 of the Labour Code
