해고원인의 경합론에 대한 비판적 고찰

This paper critically examines the existing theories and cases on mixed motive dismissal, taking the position that the existing theories and cases seem to focus only on whether dismissals in question are justifiable, and overlook relief from unfair labor practice. It challenges the conclusion of the existing cases such that “if there is a justifiable cause for the dismissal, then even if it is presumed that the employer has the intention of anti-union activities, the dismissal in question is not an unfair labor practice.” If it is recognized that the dismissal may be discriminatory treatment, which is itself unfair labor practice, it should be separately judged whether the dismissal is unfair labor practice and the additional relief from the dismissal should be sought. If the possibility of unfair labor practice is examined independent of the justifiability of the cause of dismissal, then when the employer is assumed to have anti-union intention, the dismissal is an unfair labor practice, but the question is usually mixed with the judgement of justifiability of the cause of the dismissal and is answered with the opposite conclusion. So, in my opinion, the question whether the dismissal is valid based on the result and the relief of rights violated by unfair labor practice should be determined independent of each other.