시용근로자에 대한 해고의 정당성 판단 기준

In terms that employers may reject to provide regular employment to probationary workers by evaluating vocational abilities and work aptitudes of the workers during the probationary period, there is a characteristic that the application of legal principle of restriction on dismissal upon Labor Standards Act is compromised compared to ordinary workers. However, as long as the legal nature of the probationary period is seen as a labor contract whose rights to terminate is reserved, it shall be deemed that a continual labor contract relation is established during the probationary period where Labor Standards Act applies just like in the case of regular employment. If this is the case, as employers' rejecting to provide probationary workers with regular employment by exercising reserved rights to terminate corresponds to dismissal, it is not at the completely infinite discretion of employers or it cannot be arbitrarily exercised by the employers but it is made possible only with ‘justifiable reasons’ stated under clause (1) of article 23 of the Labor Standards Act. Also seen from the perspective that employment stability shall be strengthened by continuing labor contract relations of probationary workers as much as possible, it is necessary to apply considerably stringent standards for judgement of justification of dismissal of probationary workers. That is to say, in view of purposes and intents of the probation system, exercise of reserved rights to terminate is endowed with justification only when rational reasons exist objectively to the degree that the employers' negatively evaluating probationary workers in terms of their vocational abilities or work aptitudes can be accepted as appropriate upon socially accepted ideas. Especially as long as the essence of the probation system lies in evaluating vocational abilities or work aptitudes of probationary workers, the question whether the evaluation process is established in a concrete way with objective methods according to fair standards becomes the most important judgement element in judging justification of dismissal of probationary workers, and where judgement on this part is concerned, judgement standards of justification cannot be compromised compared to ordinary dismissal but, on the contrary, more strengthened standards shall apply.