Prohibition of non-rational dismissal based on Employment Contract Act

Is it extremely tough to dismiss an employee because of one’s poor performance?

The answer is in most cases ‘yes’.  
Article 16 of Labor Contracts Act (below)  , stipulates that dismissal lacking rational grounds is invalid. 

 If a dismissal lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, it is treated as an abuse of rights and is invalid.

Above theory has been  established as  an ‘abusive doctrine of dismissal’ as a result of court precedents. Now the abusive doctrine is incorporated in Article 16 of the Labor Contract Act. This provision applies to all kinds of dismissal, personal dismissal, dismissal due to economic reasons.

However, in what case is reasonable and in what case is not reasonable is actually hard to foresee.

The ‘abusive doctrine’  mentioned above has been criticized in some standpoint.  First, the terms used in the provision, ‘objectively reasonable ground’ and ‘socially appropriate’, are rather ambiguous that the judge has  wide discretion for judgement on the validity of dismissal.  Therefore, it is
hard to predict for both employer and employee that the dismissal is valid or invalid. 

The second thing where necessary is the steps that should be taken when firing employee. When trying to dismiss an employee, it is necessary to first explain the gap with the expected value of the company and give a chance of recovery once.
Only after a certain observation period if there is still no improvement, there would be a possibility. Also in this case, a notice of dismissal is required and workers must be notified at least 30 days or more in advance.

Topic on dismissal due to economic reasons(redundancy) will be posted soon.