Workplace harassment in Korea: Meeting the criteria

David M Waters
Kim & Chang, Seoul
david.waters@kimchang.com

Hoin Lee
Kim & Chang, Seoul
hoin.lee@kimchang.com

Saeyoun Kim
Kim & Chang, Seoul
saeyoun.kim@kimchang.com

Introduction

Since the addition of provisions on workplace harassment to the Korean Labour Standards Act (LSA) in July 2019, workplace harassment has become a prevalent issue reviewed and investigated by companies in Korea. Under the LSA, companies are obligated to prohibit workplace harassment and investigate any allegations or face administrative or even criminal sanctions. Moreover, the reputational impact on companies that fail to address workplace harassment has been shown to be significant. Promulgation and media coverage of the new workplace harassment provisions have led to an increased awareness of internal investigation processes and employee rights. The somewhat broad definition of workplace harassment, as explained below, has also led to more whistleblower reports, making it increasingly important to understand what constitutes workplace harassment.

Workplace harassment

Workplace harassment under the LSA is defined as: an act that causes physical or mental suffering, or worsens the working conditions and/or 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. This description can be used to describe several different types of conduct, including favouritism in terms of training opportunities, promotion or compensation, discriminatory treatment of an employee without justifiable grounds, repeated and unnecessary contact with an employee outside of working hours, or forcing an employee to work after hours without a legitimate work-related justification.

Among the above criteria, whether actions go beyond the appropriate scope of work is often the most disputed aspect. In order to be recognised as exceeding the appropriate scope of work, one of the following must be shown: the lack of a work-related justification for such conduct in light of social norms; or a work-related justification that is insufficient in light of social norms. Whether such work-related justification or need exists is determined through examination of the employment agreement, a company’s rules of employment, various internal regulations or guidelines, and the applicable laws and regulations.

The following case studies, which are adaptations of actual cases, demonstrate how workplace harassment is determined by the competent authorities, including the Korean Ministry of Employment and Labour (MOEL).

Case studies

Consider the first case, where employee ‘A’, the head of the quality team, received several complaints from his customers about his poor performance and from his team members for his lack of communication. ‘A’ also did not show improvement after an interview with the company. As a result, his superior gave him a significantly lower human resources (HR) evaluation score compared to other employees. Unsatisfied, ‘A’ asked his superior to provide written evidence on his score. The superior simply gave ‘A’ a verbal explanation, and ‘A’ proceeded to report the matter as an incident of workplace harassment.

Giving a poor performance evaluation may or may not be considered workplace harassment. In this case, the MOEL determined that ‘A’s’ poor review did not amount to the imposition of an unjustified disadvantage, since the superior had considerable discretion over the qualitative evaluation and there was no legal obligation to provide raw data.

In another example, employee ‘B’ was newly transferred to a company’s technical support team and was not given separate training to help him adjust because his new team was very busy. ‘B’ refused to interact with other team members or attend meetings because of his frustration with the transfer. Due to his lack of cooperation, the team eventually stopped giving work to ‘B’ and ‘B’ was often not invited to team lunches. ‘B’ argued that the company’s failure to provide work-related training, to assign work to him and his team members’ behaviours constituted workplace harassment.

Excluding an employee from receiving important work-related information or from the process of making work-related decisions (eg, exclusion from a work group chat) without proper justification can constitute workplace harassment. However, the MOEL determined that in this case, there were understandable reasons for not conducting training and ‘B’ was also to blame for his choices and lack of cooperation, which resulted in the failure to get along with the team.

In the third case, sales manager ‘C’ often called urgent meetings to discuss minor issues. When one of his employees (‘D’) refused to attend a last-minute meeting because he was busy with work, ‘C’ reprimanded his work performance and attitude. When ‘D’ protested, ‘C’ had ‘D’ submit an apology letter.

Demanding a written apology or an explanation for a particular event beyond the appropriate work scope or in a discriminatory manner can constitute workplace harassment. Accordingly, in this case, the Seoul Regional Labour Relations Commission determined that there were no justifiable grounds for ‘C’ to reprimand an employee for missing a last-minute meeting and the manner in which the employee was reprimanded was also inappropriate within a workplace setting.

In the last case, design team lead ‘E’ instructed his team members to present ideas for a new product design. The employee in charge of the design proposed several ideas on many occasions, but ‘E’ was not satisfied with any of the ideas and continued to ask the employee to come up with new ideas. As a result, the employee faced an increased workload and work-related stress, leading to an allegation of workplace harassment.

Forcing an employee to perform unnecessary overtime, such as work during the weekend, or contacting employees non-stop by phone or text can constitute workplace harassment. However, in this case, the authorities determined that ‘E’ had managerial discretion to request multiple designs and did not engage in actions that went beyond the reasonable scope of work.

Conclusion

Within an environment with greater willingness towards whistleblower reports, companies in Korea need to make careful considerations regarding work assignments and performance evaluations, and enhance internal systems to prevent possible employee conduct beyond the appropriate scope of work. Creating an atmosphere free of workplace harassment and employee peace of mind should inevitably result in increased productivity and a ‘win-win’ environment for both employers and workers.