최근 노동쟁송 실무상의 쟁점과 흐름 ― 해고를 중심으로 ―

The adjudication object of Labor Relations Commission under the Labor Standard Act depends on the interpretation of the scope of “other punitive measures” in the article 23, section 1 of Labor Relations Commission. Here, “other punitive measures” should be interpreted as the concept that includes all measures for personnel management of the employers. In case the existence of dismissal itself matters in the legal procedure, it should be resolved in a way that the employer takes the burden of proof, considering the intention of the Supreme Court Ruling that places the burden of proof for dismissal to the employer. Although Korean Court has established the general practice that acknowledges the declaration of resignation intention by force or involuntarily as dismissal, it is very strict in applying such a principle of law to the individual cases. This seems to be caused by the characteristic of the letter of resignation as a measure document. However, it would be necessary to actively apply the abovementioned principle of law at least to the cases of en mass resignations․selective acceptance. Recently Supreme Court judged that the order to submit a written apology containing apology or remorse didn't take effect, which seems to be a reasonable judgment, considering the precedent of the Constitutional Court on the freedom of conscience. In case of the dismissal of guilty for the reason of a judgement of a conviction, its legitimacy is judged depending on the ‘job relatedness’ of the laborer's acts. In the precedents, the job relatedness was interpreted broadly to acknowledge the legitimacy of the dismissal broadly. However, dismissal of the employee solely based on the judgement of a conviction is against the Labor Standard Act unless the employee neglects the basic duty of providing labor. In case of the dismissal for managerial reasons, there can be found some precedents of the lower courts in which the requisite for legitimacy is strictly interpreted. However, the precedents of the Supreme Court acknowledge the legitimacy broadly and there can be found some cases in which the interpretation exceeds the limitation of legal interpretation especially for the interpretation of requisites of prior agreement with the labor representatives. This is to disvalue the procedural legitimacy of the dismissal for managerial reasons, which is not reasonable from the perspective of the due process. With respect to the written notification of reasons for dismissal, what written notification possibly means matters. If the intention of dismissal is explicit and the subject of the declaration of the intention is the authorized person for dismissal, there would be no reason to deny it as a written notification. Since the reasons for dismissal and the date of such dismissal should be specified, the dismissal case in which either of the two is missing should be interpreted as not taking effect. In addition, In case where the written notification is made soon after the verbally-notified dismissal, the remedy of the procedural flaw of lack of written notification should be acknowledged. Labor Relations Commission usually takes the measure of remedy order in which it orders the reinstatement and the payment of the amount of wages he/she would have received if he/she had worked during the dismissal period at the same time. In this case, it does not fix the amount of wages he/she would have received if he/she had worked during the dismissal period. Although cannot be regarded the remedy order not to fix the amount of wages as invalid, it would be desirable to fix it. In case of the monetary award order, it only orders the monetary award for the period from the dimissal date to the date of adjudication. However, it would be reasonable to order the payment of the amount of monetary award occurring from the date of dismissal to the pay-off day as the form of future performance. Since there is the limit in the illegality reasons that the employer can assert in the legal procedure related to the enforcement levy, there can be rarely found the judgement that withdraws the measure of imposing the enforcement levy itself. Although there are of the precedents in which the employee cannot protesr the measure of not imposing the enforcement levy, the employee has the right request imposing the enforcement levy logically. Thus, it is reasonable that the standing to sue of the employee should be acknowledged. If it is interpreted in this way, the legal procedure for the enforcement levy would be more facilitated. In order to operate the process of remedy through Labor Relations Commission, it is necessary to legislate labor procedural law or to revise Labor Relations Commission Act drastically.