부당해고구제신청제도의 남용과 개선방안

Traditionally the remedies for an unjustifiably dismissed employee are a combination of reinstatement and compensation for lost remuneration. However, reinstatement, the conventional component to a back pay award, is not an advantageous corrective. With the amendment of Labor Standards Act 2007 in Korea new schemes are introduded: i. e. written statement requirement for the validity of the termination(Section 27) and monetary remedies for discharged employees in lieu of reinstatement(Section 30). Section 27 of Labor Standards Act requires an employer to give written notice to an employee of the proposed termination. The amount of monetary compensation amounts to at least the reimbursement for lost income from the date of dismissal to the date of judgement. Most employees act in a legal and moral manner. But some employees abuse the new schemes. The most usual abuse case by the employee appears to be where the employer fails to terminate in written form. Once the employee files suit against the employer that he has violated the written notice requirement of the termination back pay liability should return to the employer. Most oral termination without written notice is held wrongful by Labor Commission, even if the just cause for the termination is substantially proved. A written notice requirement is useful for preventing the unnecessary dispute about the existence of discharge by employer. And the monetary compensation is a practical measure for remedying wrongful discharge, especially for the employee who don't want his job back. Despite the apparent ease of monetary remedies, back pay (which hangs on the period between the date of the dismissal and the date of judgement and therefore could amount to occasionally 3-6 months wages) seems to be inadequate to compensate the employee who has only worked for the short period(for example for several days). The reform would require employees to have satisfactorily completed an initial six-month probationary period before acquiring the protection of a just cause requirement. Such probationary employees, defined as new employees serving a probationary period, could be discharged during the probationary period without the employer demonstrating good cause. Within 30 days after receipt of a written termination notice, the employee can sue the employer for unfair dismissal. The employer is solely responsible for back pay for the employees who did not meet the qualifying period(for example 2 years-service) for the monetary award, taking into account equitable considerations as the employee's length of service with the employer. Any interim earnings from other jobs should be subtracted in calculating net back pay.