[In Court for Direct Exposure]② Bystanders Are Also Accomplices... Bosses Who Make Victims Cry Twice

"Looking at the measures the company took after the victim complained of harm, there is not a trace of 'consideration for the worker.' The defendant employer's low level of awareness toward workers will always overlook other perpetrators and abandon many other victims."

These were the words emphasized by the Criminal Division 1 of the Chungju Branch of Cheongju District Court in April 2021 (then presiding judge Im Chang-hyun) when sentencing the CEO of a cafeteria outsourcing company A guilty in the first trial. The CEO A actually disadvantaged the victim who claimed to have been bullied at work by a superior. The victim was transferred to a workplace much farther from their original home. The victim could not arrive on time by public transportation and, while caring for a sick family member, eventually had to move into a dormitory.

The prosecution requested a fine of 2 million KRW, but the court unusually sentenced the CEO to six months imprisonment with a two-year probation. The court also ordered 120 hours of community service, saying, "Learn the meaning of labor from the worker's position." This case became the first confirmed imprisonment under the Labor Standards Act’s employer punishment clause for workplace bullying.

In workplace bullying cases, there are victims, perpetrators, and bystanders. The Labor Standards Act does not have provisions to directly punish perpetrators. Recently, former chief prosecutor Kim Dae-hyun (55, Judicial Research and Training Institute class 27), who was sentenced to eight months imprisonment for workplace bullying that led to the victim’s extreme choice, was punished under the Criminal Act for assault against a junior prosecutor.

However, the Labor Standards Act includes punishment and sanction provisions for bystanders, especially employers. If a worker who reported bullying suffers disadvantageous treatment because of the report, the employer can be sentenced to up to three years imprisonment or fined up to 30 million KRW. If the employer fails to fulfill obligations such as investigation, victim protection, or disciplining the perpetrator, a fine of up to 5 million KRW can be imposed.

Since employers have a duty to protect and ensure the safety of workers providing labor, the law’s intent is to hold employers accountable for prevention and post-management before holding individual perpetrators responsible.

Reviewing four first-instance rulings confirmed in the past two years under Article 76-3 of the Labor Standards Act, which punishes employers for workplace bullying, all recognized employer responsibility and found them guilty. Three cases resulted in suspended prison sentences, and one in a fine.

Park Yoon-jin, a certified labor attorney at Happy Work Research Institute, said, "Bullying acts vary widely, including assault, insult, and sexual harassment. If all are lumped together as 'workplace bullying' for punishing perpetrators, there is a high chance that whether the act constitutes bullying will be judged more conservatively and narrowly during investigations." She added, "It is much more effective to lead employers to resolve bullying issues autonomously within the company through disciplinary actions and measures to prevent recurrence."

In the case of CEO A, Judge Im emphasized, "As repeatedly confirmed by Supreme Court precedents, employers have a duty to protect and ensure safety by taking necessary measures so as not to harm workers’ life, body, or health. Considering recent labor environments, this duty includes protection and safety consideration from intangible and mental risks."

So far, courts have comprehensively considered factors such as whether disadvantageous measures were taken close to the time of the complaint, the circumstances and process of the measures, whether the reasons cited by the employer existed before the complaint, the degree of disadvantage suffered by the victim, and whether the measures were exceptional or discriminatory compared to previous practices or similar cases.

Accordingly, in September last year, Judge Park Min-gyu of the Andong Branch of Daegu District Court sentenced the director B of a youth training center to four months imprisonment with one year probation for firing a victim one month after the bullying was reported. In November 2021, Judge Yang Hwan-seung of the Criminal Division 3 of Seoul Central District Court fined 4 million KRW the CEO C of a construction consulting company who blocked the return of a bullying victim from parental leave and imposed indefinite unpaid leave, stating, "The reasons the defendant gave for refusing the victim’s request to discipline perpetrators cannot be considered valid. The measures expected from an employer were not sufficient at all."

Labor law specialist lawyer Lim Dong-chae, partner at law firm I& S, said, "Cases where employers disadvantage victims or reporters of workplace bullying and are punished will continue to increase. Therefore, employers must thoroughly protect victims or reporters and strive to eradicate workplace bullying."

Last year, the Supreme Prosecutors’ Office interpreted that "extreme choices due to workplace bullying are hard to be regarded as serious industrial accidents," but "if bullying occurs as a way of performing work, or if extreme choices occur under conditions of excessive job stress with clearly diminished normal cognitive abilities, it may fall under the Serious Accident Punishment Act."

Members of the Korean Air Employees' Union held a candlelight vigil on the 25th in front of Bosingak in Jongno-gu, Seoul, urging the resignation of Chairman Cho Yang-ho's family of Hanjin Group and the eradication of power abuse. Photo by Kim Hyun-min kimhyun81@