현행 해고보호제도의 체계적 이해와 해석에 관한 연구

Abstract

The article 23 of the Labor Standards Act prohibits an employer from dismissal and other kinds of personnel actions against a worker without justifiable reasons. No employer shall dismiss, lay off, suspend, or transfer a worker, or reduce wages, or take other punitive measures (hereinafter referred to as “unfair dismissal, etc.”) against a worker without justifiable reasons. It's unusual even in comparative law for the prohibition of disadvantageous actions in personnel to be defined by law. If all kinds of personnel actions against a worker as well as dismissal are regulated by law, the meaning and contents of justifiable reasons should be changed as the case which may or may not aim at the end of labour relations. It is a justifiable reason for dismissal that labour relations can't be expected to be maintained by social norms. Justification for disadvantageous actions in personnel, on the other hand, is judged by comparing the profits of the need for work and the disadvantage that workers have for living. The article 23 of the Act defines dismissal from default of obligation by reasons attributable to a worker, dismissal not on the grounds attributable to a worker but on the grounds of him or her contributing to default of obligation, and dismissal on the grounds of not being expected to be employed in future because a worker infringes the rules in the workplace and so on. Then both dismissal on the grounds of personal capability and disciplinary dismissal are able to come under the cognizance as dismissal on the grounds of a fault attributable to a worker. That is, dismissal on the grounds of personal capability is not to preserve the employment relationship any more because the employer doesn't do despite opportunities to change the inappropriate behavior. Disciplinary dismissal, on the other hand, is differentiated from dismissal on the grounds of personal capability in that it not only means to punish for past wrongdoings but also can occur when the wrongdoings which violate corporate order reach an unacceptable level where the worker can't be expected to be employed in future.