Can You Be Fired During Workers' Compensation Leave? Standards and Procedures for Unfair Dismissal Relief Applications
If you've suddenly received a dismissal notice while currently on workers' compensation leave, we understand how frustrating and anxious this situation must be. Many workers ask, "Can I be fired while on workers' compensation leave?" The answer is complicated. While the Industrial Accident Compensation Insurance Act and the Labor Standards Act restrict dismissal, termination is possible if there is just cause. This article clearly distinguishes between justified and unjustified dismissal during workers' compensation leave and explains step-by-step the relief application procedures you can pursue if deemed unfair dismissal.
Legal Foundation of Dismissal Restrictions During Workers' Compensation Leave
An employer cannot arbitrarily dismiss a worker on workers' compensation leave. This is clearly stated in Article 23 of the Labor Standards Act.
Dismissal prohibited during workers' compensation recovery period and for 30 days thereafter
Article 23 of the Labor Standards Act explicitly prohibits dismissal during the period of workers' compensation recovery and for 30 days afterward. However, this provision is not absolute, and exceptions exist.
Meaning of the Dismissal Restriction Period
The dismissal restriction under the Labor Standards Act establishes a protected period from immediately after a workers' compensation insurance accident occurs through 30 days after the end of treatment. This measure is designed to ensure livelihood maintenance during the worker's physical and mental recovery period or early stages of return to society.
Determining When Treatment Ends
The 'treatment period' begins from the approval of the workers' compensation claim. Therefore, if the workers' compensation claim is denied or determined not to be a workplace injury, the dismissal restriction may not apply. In such cases, you must proceed through the workers' compensation denial appeal process.
If the workers' compensation determination itself is rejected, you cannot receive the protective benefits of the Labor Standards Act's dismissal restrictions.
Exception Situations Where Dismissal Is Possible
Not all dismissals are deemed unfair. There are legitimate reasons for dismissal even during workers' compensation leave.
Reduction in force due to business closure or operational necessity
- Cases where part of the business is discontinued or business restructuring is necessary
- However, rational judgment standards and established procedures must be followed
Disciplinary dismissal based on worker's fault
- Objectively proven serious misconduct such as workplace harassment or wrongdoing
- However, disciplinary action as retaliation solely because the worker is on workers' compensation leave is not recognized
Expiration of contract period or automatic termination of fixed-term employment
- Cases where a fixed-term employee's contract period ends
Force majeure or unavoidable circumstances
- Situations where business operations become impossible
To determine whether dismissal during workers' compensation leave is justified, both the objectivity of the reason and the legitimacy of the procedure are necessary.
Important Precautions
These exception reasons must also be objectively proven with at minimum legitimate grounds, and the employer must provide the worker with sufficient opportunity and follow proper procedures. Dismissal as retaliation based on workers' compensation leave can never be justified.
Primary Cases Deemed Unfair Dismissal
Conversely, you must understand the cases where dismissal is determined to be unfair.
Explicit Dismissal Based on Workers' Compensation Leave
This occurs when an employer explicitly states that the worker's workers' compensation leave is the reason for dismissal. For example, a reason such as "dismissal due to work gaps caused by workers' compensation leave" is not recognized as justified cause.
Retaliatory Dismissal Following Workplace Harassment Report
When a worker reports workplace harassment, dismissal based on such a report is also deemed unfair dismissal. Article 76-2 of the Labor Standards Act prohibits adverse treatment of workplace harassment victims.
Case Where Workers' Compensation Claim Was Denied But Is Actually a Workplace Injury
Even if the Workers' Compensation Insurance Corporation issues a denial determination, if you are disputing it through administrative litigation or submitting a reconsideration request, or if the determination is still pending, dismissal may be restricted. If the workers' compensation determination process is ongoing, the protective period for dismissal restriction continues.
Cases Where Treatment Has Worsened After Workers' Compensation Without Just Cause
Clear adverse treatment such as salary reduction or job reassignment can also become serious issues equivalent to unfair dismissal.
For dismissal during workers' compensation leave to be justified, there must necessarily be objective reasons unrelated to the workers' compensation claim.
Dismissal based on workers' compensation leave or workplace harassment reporting is unfair dismissal.
Relief Application Procedures and Standards for Unfair Dismissal
If you have been unfairly dismissed while on workers' compensation leave, you can protect your rights through relief application. The procedure is as follows:
Where do I file an unfair dismissal relief application and what is the deadline?
Step 1: Unfair Dismissal Relief Application (Labor Relations Commission)
- Filing deadline: Within 90 days from the date you receive the dismissal notice
- Filing location: Competent regional Labor Relations Commission
- Required documents: Dismissal notice, employment contract, pay stubs, workers' compensation approval certificate, etc.
Step 2: Labor Relations Commission Investigation and Hearing
- The Labor Relations Commission investigates the case details and hears both parties' arguments
- You may appoint a representative (administrative attorney, attorney)
- Generally takes 2–3 months
Step 3: Labor Relations Commission Determination
- Unfair dismissal determination: Reinstatement or monetary compensation
- Justified dismissal determination: Application dismissed
- If you disagree, administrative litigation is possible (within 90 days)
The 90-day relief application deadline is a critical deadline that must not be missed.
Unfair Dismissal Relief Application Preparation Checklist
Dismissal notice or equivalent evidence
Workers' compensation approval decision or documentation proving you are on workers' compensation leave
Related documents if workers' compensation denial appeal is necessary
Workplace harassment reporting documents (if applicable)
Work period and payroll records
Other evidence showing dismissal is unfair (emails, text messages, recordings, etc.)
Proceeding in Parallel with Workers' Compensation Denial Appeal
If the workers' compensation claim itself has been denied, you may need to proceed with the workers' compensation denial appeal first or simultaneously. The specific method is as follows:
- Workers' Compensation Insurance Reconsideration Committee reconsideration request: Within 90 days from receipt of the denial decision
- Administrative litigation: If you disagree with the Reconsideration Committee's decision
- Parallel proceedings: You can pursue both unfair dismissal relief application and workers' compensation denial appeal simultaneously
The determination of workers' compensation eligibility directly affects the unfair dismissal determination, so it is very important.
Quick Response Methods When Dismissed During Workers' Compensation Leave
Your response from the moment you receive a dismissal notice can determine the outcome.
What should I do first when I receive a dismissal notice?
Immediate Evidence Preservation
Record clearly the dismissal notice, date and time of notice, and the person providing notice, and secure the following evidence:
- Text messages, emails, and recording files related to the dismissal notice
- Documentation proving you are on workers' compensation leave
- Documentation showing the connection to workplace harassment reporting
- Evidence of work period and payroll
Consultation with the Workers' Compensation Insurance Corporation
If you are on workers' compensation leave, notify the Workers' Compensation Insurance Corporation of the dismissal situation and receive consultation on future procedures.
Consultation with Dasiibom Administrative Attorneys
It is important to seek professional consultation [as quickly as possible after receiving dismissal notice. Dasiibom Administrative Attorneys has extensive experience handling many cases involving both unfair dismissal relief applications and workers' compensation denial appeals.
Support Provided by Dasiibom Administrative Attorneys
Preparation for an unfair dismissal relief application is extremely important.
Dedicated Team Composition
- Dedicated administrative attorney managing both workers' compensation denial appeals and unfair dismissal relief applications simultaneously
- Support for the entire process from evidence collection to Labor Relations Commission hearings
Document Preparation and Evidence Organization
- Relief application drafting
- Workers' compensation denial appeal application drafting
- Evidence material organization and supplementation
Labor Relations Commission Hearing Representation
- Attendance as representative during Labor Relations Commission hearings
- Case explanation and cooperation in evidence submission
Conclusion: Respond to Dismissal During Workers' Compensation Leave
Key Summary
Dismissal during workers' compensation leave is not always unfair, but dismissal based on workers' compensation leave or workplace harassment reporting is clearly unjustified. Unfair dismissal relief applications must be filed with the Labor Relations Commission within 90 days of the dismissal notice. If you miss this deadline, there is no way to seek relief.
Final Words of Advice
Evidence preservation and quick response begin the moment you receive a dismissal notice. As time passes, evidence disappears and memories fade. Workers' compensation approval and unfair dismissal determination are separate matters, so both require strategic [TOKTOK]
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