South Korea: Hyundai and Female Victim of Sexual Harassment

AHRC-FST-064-2011
December 8, 2011
A Statement from Korean Public Interest Lawyers' Group forwarded by the Asian Human Rights Commission

Dear

The public interest lawyers group “GongGam” (South Korea) is sending this email on behalf of a female worker who was sexually harassed, and unfairly dismissed by a subcontractor of Hyundai Motor Company (hereinafter referred to as “Hyundai”). Although Hyundai clearly holds legal as well as moral responsibility for this matter, up to the present no steps have been taken to rectify the situation.

We are deeply concerned that Hyundai, as one of the world's leading conglomerates, is neglecting its legal obligations, thereby contributing to the damage of sexual harassment at work and the aggravation of the working environment for female workers in South Korea.

Hyundai should immediately implement monetary compensation for the damages caused by the harassment, reinstate the victim to her original job, and take disciplinary actions against the offenders.

In addition, Hyundai should implement programs to ensure that all workers, whether hired directly or indirectly, receive preventive education on sexual harassment, and reorganize the company’s relief process to prevent the recurrence of such incident, where the victim of sexual harassment is unfairly dismissed instead of being provided with adequate relief.

The details of the incident are as follows:

In 1997, Ms. Park joined a so called “in-house subcontractor” and started working at the Hyundai plant located in Asan, South Korea. She continued working at the plant for 14 years, until she was wrongfully dismissed in 2010. During those 14 years the subcontractor’s business name and president changed 9 times, while she continued to be employed in the same job – the final inspection of Hyundai’s automobiles.

In 2008, her team leader and the on-site chief (the subcontractor was 'Geumyang Logistics' then) began harassing her sexually. They repeatedly used offending language of sexual nature and made profane remarks at her, and also assaulted her physically, such as rubbing her shoulder and holding her from behind in working hours. Not being able to stand the harassment, she told her colleagues of her plight. But in December 2009, after the news had spread out within the workplace, a Human Resources Committee meeting was held, which resolved that she be suspended for 6 months for having “carelessly tarnished the company’s image.” One of the offenders attended the meeting as a committee member. After a retrial, the penalty was changed to a wage cut of three months’ salary.

In defiance of the unfair punishment, Ms. Park submitted a petition to the National Human Rights Commission of Korea (NHRCK) on September 3, 2010, whereupon, on September 20, 2010, Geumyang Logistics’ Human Resources Committee decided to dismiss her for disciplinary reasons stating that “it would be the socially accepted view that it was impossible to continue the employment.”

On October 14, 2010, Ms. Park started picketing alone at the main gate of the factory, but was physically assaulted by about 30 Hyundai managers and security guards, which caused her to be hospitalized for four weeks.

On November 4, 2010, Geumyang Logistics closed its business and ‘Hyungjin Company’ started business as a subcontractor of Hyundai. All former workers of Geumyang Logistics except Ms. Park were transferred to Hyungjin Company.

On January 14, 2011, the NHRCK reached a ruling that her case clearly involved “sexual harassment at work” and that her dismissal constituted an “unfavorable measure against the victim of sexual harassment regarding her employment status” and urged the employer and the two offenders to compensate her for mental and physical damages. But the ruling has been ignored ever since it was made, and no actions have been taken.

Hyundai strongly denies any responsibility and adheres to the position that Ms. Park did not have any direct employment relationship with Hyundai and that her employment contract was with the subcontractor.

However, on July 22, 2010, the Supreme Court stated that the Act on the Protection of Dispatched Workers (hereinafter the “APDW”) should also be applied to workers hired by subcontractors but working at Hyundai's plants. The Supreme Court ruled that since Hyundai in effect used dispatched workers (using dispatched work is not allowed in the manufacturing industry) it should fulfill the obligations as the “Receiving Employer” under the APDW. According to the Supreme Court judgment, this means that Article 6 Paragraph 3 of the APDW, which states that “if the Receiving Employer continued using the dispatched worker for more than 2 years, the dispatched worker will be regarded as having been employed directly by the Receiving Employer from the day following the last day of the 2 year period,” should be applied to Hyundai. (Supreme Court, 2008Du4367, decided on July 22 2010)

According to above judgment, Ms. Park has been a regular employee of Hyundai for the last 12 years, having worked for over 2 years at Hyundai as a dispatched worker subject to the provision on deemed direct employment. In other words, from the day following her last day of her second year at Hyundai, she has been in direct employment with Hyundai. Thus, Hyundai, as her employer is obligated to take measures regarding the sexual harassment she suffered. Since NHRCK found that her case was clearly a sexual harassment case, Hyundai has the legal obligation to take disciplinary actions against the perpetrators in accordance with article 14, paragraph 1 of the Act on Equal Employment and Support for Work-Family Reconciliation (hereinafter the “AEE”) . In addition, her dismissal should be retracted to reinstate her back to work in accordance with article 14, paragraph 2 of the AEE, which states that “an employer shall not dismiss or otherwise take unfavorable measures against someone who is the victim of sexual harassment or raised claims of sexual harassment.”

Even if, the Supreme Court’s judgment notwithstanding, one takes the stance that Ms. Park should not be deemed to have been employed directly by Hyundai, Hyundai would still not be able to escape responsibility for the damages caused by the sexual harassment, since Hyundai as the prime contractor failed to provide preventive education on sexual harassment to the employees of its subcontractors in accordance with article 34 of the AEE , as a result of which sexual harassment actually took place at Hyundai’s plants.

Hyundai is the only entity capable of resolving Ms. Park’s present situation. From a legal perspective, Hyundai has the obligation as Ms. Park’s legal employer to pay compensation for the damages she suffered as a result of the sexual harassment as well as reinstate her to work. However we would like to point out that, putting aside the legal aspects of the matter, Hyundai as a matter of fact is in the position to make Hyungjin Company rehire Ms. Park. In dealing with this incident, Hyundai can play a pivotal, yet not so difficult, role. Whether or not the human rights of a female worker will be protected depends on Hyundai. Once Hyundai neglects this issue, the victims of sexual harassment will continue to be forced to keep silent for fear of being treated unfavorably for having raised the issue. If, however, Hyundai actively exerts its efforts to resolve the situation, such efforts will contribute highly to the elimination of sexual harassment at the workplace and raise the level of protection of the rights of female workers, as well as have a very positive impact on Hyundai’s reputation. Hyundai holds the key to resolve the present situation. We appeal to you as Hyundai’s shareholder to do everything in your power to induce Hyundai’s management to reinstate Ms. Park as Hyundai’s direct employee, or at least as Hyungjin Company’s employee, the same as the other former employees of Geumyang Logistics who were all transferred to Hyungjin Company, and to compensate Ms. Park for the damages caused by the harassment she endured as well as take disciplinary actions against the perpetrators.

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The public interest lawyers group "GongGam" was established as Korea's first full-time public interest lawyers organization. Since founded in 2004, we have been advocating the interests of socially marginalized people such as disabled, immigrants, women, sexual minorities and workers lacking labor union protection, through various activities including public interest litigation, system reformation and legal education activities.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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