Question 137: In case of applying the disciplinary form of dismissal for a relapse, is such relapse required to be the same as the previous disciplined offense? The ILRs stipulate that “Employees will be disciplined in the form of extending pay raise period if Employees commit a relapse by causing another offense due to which Employee have been reprimanded for the most recent six months regardless of whether such offense is the same as the previous one”. Is the said ILR stipulation contrary to the law?

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1.In case of applying the disciplinary form of dismissal for a relapse, is such relapse required to be the same as the previous disciplined offense?

Pursuant to Article 126.2 of the Labor Code, a relapse will be construed as the case where Employees repeat the offense that has been disciplined and not yet acquitted of discipline under Article 127 of the Labor Code. Therefore, Employers may only discipline Employees in the form of dismissal if Employees repeat the offense that has been disciplined in the previous form of extending pay raise period and still stay within the period of being not yet acquitted of disciplined (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 126 of the Labor Code, a relapse only applies to the case of disciplinary action in the form of dismissal. However, pursuant to the provision on a duration of discipline acquittal in Article 127.1 of the Labor Code, it is understood that the provision on a relapse of the offense subject to discipline in the form of reprimand similarly applies to that of the offense subject to discipline in the form of extension of pay raise period and removal from office based on the provision on a duration of discipline acquittal for office removal.

2. The ILRs stipulate that “Employees will be disciplined in the form of extending pay raise period if Employees commit a relapse by causing another offense due to which Employee have been reprimanded for the most recent six months regardless of whether such offense is the same as the previous one”. Is the said ILR stipulation contrary to the law?

As analysed above, a relapse must be interpreted as a repetition of the same offense that was previously disciplined. Therefore, the word “relapse” will not apply where the previous offense and the current offense are not the same. Furthermore, the duration of LD acquittal for the form of reprimand is 3 months. Accordingly, the ILR stipulation by Employers that “Employees will be disciplined in the form of extending pay raise period if Employees commit a relapse by causing another offense due to which Employee have been reprimanded for the most recent six months regardless of whether such offense is the same as the previous one” is not in accordance with the law.