Judgments on Cases of Workplace Harassment
Bongsoo Jung, a Korean labor attorney at KangNam Labor Law Firm
I. Introduction
On August 8, 2024, I was asked to attend a committee meeting regarding reported workplace harassment at a public company. This committee was formed with five external experts to resolve three claims of harassment in fact. To ensure objective and fair decisions, the committee included two labor attorneys, two lawyers, and one psychologist. Inclusion of the psychologist indicates that the committee not only considered the legal aspects of the case but also the context in which the incidents occurred and how to prevent harassment in the workplace in the future.
The committee reviewed the cases brought by the employees from multiple angles and made decisions by consensus of the expert members regarding whether the incidents constituted harassment and their severity.
II. Criteria for Judging Workplace Harassment
Workplace harassment occurs when an employer or employee abuses their position or relationship at work to inflict physical or mental suffering on another employee or worsen their work environment, going beyond the appropriate scope of work (Labor Standards Act, Article 76-2). Specifically, this includes (1) using one's position or authority at work; (2) engaging in violence, verbal abuse, assigning excessive work, giving no work, or excluding the employee; and (3) resulting in physical or mental distress for the employee.
To determine whether workplace harassment has occurred in actuality, the reported incident(s) must meet the established concepts of work-relatedness, abuse of authority, and infringement of the employee’s personal rights. Furthermore, a comprehensive judgment should consider other related details.
First, consider ① the relationship between the parties, ② the location and circumstances where the incident occurred, ③ the explicit or presumed reaction of the victim, ④ the content and severity of the incident, and ⑤ whether the incident was a one-time occurrence or ongoing. Second, assess whether the incident could cause physical or mental suffering or deteriorate the working environment from the perspective of a typical, average person in a similar situation. Third, assess whether the incident resulted in physical or mental suffering or a deteriorated work environment for the alleged victim.
When deciding whether workplace harassment has occurred, the motive or intent of the alleged perpetrator is not considered.
III. Case 1
1-1. Reported Incident 1 [Feeling Humiliated and Pressured During a Conversation About Contract Renewal]
The complainant, Mr. Choi (33 years old), has been working as a contract employee in Department A for 1 year and 3 months. The accused, Mr. Lim (46 years old), has been the team leader of Department A for 15 years.
The following is part of a conversation between the accused team leader (hereinafter referred to as "the team leader") and the complainant on the morning of March 27, 2024, at the company’s Pangyo office (recording submitted).
During work, the team leader asked to meet with the complainant at a nearby café. The team leader inquired whether the complainant’s livelihood would be secure after the end of his employment contract and sought to confirm whether the complainant was the sole breadwinner. The complainant felt anxious about the expiration of his contract, and the team leader suggested that he could help if the complainant was cooperative. The team leader did not have similar meetings with two other contract employees whose contracts were also expiring soon and made remarks that made the complainant feel humiliated. The complainant had only been working with the current team leader for three months and was surprised that the team leader, who did not fully understand his work, was comparing him with other contract employees. The team leader also scolded the complainant about his appearance, telling him to dress more neatly. The complainant felt very uncomfortable when the team leader implied that he needed to make a good impression to secure a permanent position.
1-2. Reported Incident 2 [Preemptive Notice of Low Performance Evaluation]
The following is part of a conversation between the accused team leader and the complainant on July 10, 2024, around 4 PM at a café in the Pangyo office building (recording submitted).
While working, the team leader invited the complainant for coffee outside the office and informed him in advance that his performance evaluation for the first half of the year would likely be low. The team leader said, “I spoke with the division head, and since this is a first-half evaluation and it’s evaluated by division, I’m afraid I have no choice but to give you a relatively lower evaluation than the others. I hope you won’t be too disappointed if your bonus is lower.” The complainant was shocked and felt humiliated by this advance notice. The team leader then continued to suggest playing golf together and hinted that he could send the complainant abroad for training next year, using his position to imply that he could make these things happen.
2. Investigation and Evaluation by the Grievance Committee
On July 15, 2024, the complainant visited the company’s audit team and claimed that he had suffered workplace harassment. In response, the company requested an external certified labor attorney on July 18 to begin looking into things. The labor attorney in charge conducted a face-to-face interview with the complainant on July 23 and with the accused on August 1. Since the case involved only conversations and recordings between the complainant and the accused, there were no separate interviews of other witnesses.
The committee concluded that the incidents did not constitute workplace harassment. While the complainant mentioned that the discussion on contract renewal was a highly sensitive issue, it was found that the team leader merely discussed work support and directions for improvement in his capacity as a superior, without making any demeaning remarks or demands with strings attached. From the complainant’s perspective, the conversation with a superior who had the authority to decide on the contract renewal might have caused stress. However, the actual conversation was a meeting to discuss ways for the complainant to improve his work performance as the contract expiration date approached, and the advance notice about the incentive bonus was simply informational. Although the complainant mentioned the team leader’s golf suggestion and mention of the possibility of training overseas, there was no evidence that these were direct demands .
IV. Case 2
1-1. Reported Incident 1 [Verbal Abuse, Restriction of Overtime Requests]
The complainant, Mr. Yang (36 years old), has been working as an assistant manager at A Technical Center for 6 years, and the accused, Mr. Kim (45 years old), has been the center director at A Technical Center for 18 years.
The following is a claim of workplace harassment during a conversation between the complainant and the accused on the morning of December 21, 2023. Following a company guideline email, the complainant submitted a request for overtime pay based on the upcoming end-of-year overtime schedule. The next day, the center director made remarks such as, “Are you a beggar? Are you desperate for money?” These comments led the complainant to refrain from submitting any further requests for overtime pay. Even at the beginning of the new year, the complainant was reluctant to apply for overtime pay despite working overtime due to the fear of further demeaning language.
1-2. Reported Incident 2 [Personal Errands Ordered]
The following incident occurred on March 19, 2024, at around 10 AM when the complainant received a work-related call from the accused while commuting home after a night shift. The complainant was on his way home by subway after working the night shift when the center director called and asked for assistance with registering a vehicle. The complainant accessed the groupware system via his mobile phone and found the website and account information, which he then sent via KakaoTalk messenger. The call, which occurred outside of working hours, required the complainant to use a significant amount of time to handle the work-related request while commuting home after his night shift.
2. Investigation and Evaluation by the Committee
In the first case, the center director, who was in a superior position, belittled the complainant, which prevented him from exercising his right to request overtime pay as guaranteed by the Labor Standards Act. The director’s remark, “Are you a beggar? Are you desperate for money?” led to the complainant being too uncomfortable to apply for the legally entitled overtime pay. This insult, amounting to bullying the complainant away from claiming his rights under the law, constituted workplace harassment. Even though the comments may have occurred only once, they intimidated the complainant and his colleagues away from requesting overtime pay, thereby worsening their work environment.
However, in the second case, the committee concluded that the accused’s work-related call to the complainant after his work hours did not constitute workplace harassment. Although the complainant claimed that the call was harassment, the committee found that the call was related to confirming work matters, which, by general standards, would be considered acceptable and not severe enough to be recognized as harassment.
V. Case 3
1. Reported Incident [Verbal Abuse, Use of Physical Force, etc.]
The complainant, Mr. Ahn (29 years old), has been working as a supervisor at A Technical Center for 8 years, and the accused, Mr. Kim (45 years old), has been the center director at the same workplace for 18 years.
The complainant reported that on June 12, 2024, he had been subjected to verbal abuse and physical violence by the center director (the accused). According to the report, the complainant was called to a meeting room by the accused, who then verbally abused him for approximately 10 minutes after receiving a customer complaint. The accused even pulled the complainant’s ear during the incident. Later, the accused acknowledged the violent act but apologized with a mocking laugh, causing the complainant severe stress and a sense of helplessness.
2. Investigation and Evaluation by the Committee
On July 9, 2024, the complainant reported the physical violence to the company. The company then conducted a face-to-face interview with the complainant on July 11, followed by an interview with a colleague as a witness on July 16. The interviews confirmed that on June 12, 2024, the accused had pulled the complainant’s ear and verbally abused him while addressing a work-related issue. The accused admitted to pulling the complainant’s ear but claimed it was to focus his attention and not to cause harm. Separately, the complainant testified that he had been subjected to long-term harassment by the accused, which had led to psychological distress, dependency on sleeping pills, and difficulties in both personal and work relationships. He also reported that he experienced anxiety and elevated blood pressure whenever he went to work, fearing further similar treatment from the accused. While the complainant submitted specific medical records related to his psychological condition, he was unable to provide additional evidence to support his claims of verbal abuse or physical violence by the accused.
Regarding this case, the committee concluded that the verbal abuse and ear-pulling by the accused constituted workplace harassment. After reviewing the witness statements and the complainant’s detailed testimony, the committee recognized that the accused had repeatedly engaged in verbal abuse or harassment that exceeded the reasonable scope of work. The committee acknowledged that the accused had caused the complainant both mental and physical distress by abusing his superior position. Consequently, the committee decided that immediate measures should be taken to separate the complainant from the accused in the workplace. The accused was also required to undergo education on workplace behavior as part of the disciplinary action for engaging in workplace harassment.
VI. Conclusion and Implications
The obligation to prevent workplace harassment stems from the employer's responsibility to provide a safe working environment for employees. Since the introduction of the Workplace Harassment Prevention in the Labor Standards Act in 2019, the importance of protecting employees' personal rights within workplace hierarchies has been increasingly recognized. However, as the cases discussed earlier illustrate, many employees continue to suffer from workplace harassment. It is crucial to note that when determining whether workplace harassment has occurred, the alleged perpetrator's motive or intent is not considered. Once harassment has been confirmed, it is essential to implement appropriate disciplinary measures to prevent recurrence. Failing to address such issues promptly can lead to repeated incidents, and inadequate protection of affected employees.
|
|
Connect to the app
