경영상 이유에 의한 해고 대상자의 선정기준에 관한 헌법적 검토

This article focuses on drawing the legally restrictive standard of designating the workers who are to be laid off from the constitution, when the employer decides the dismissal of the workers for the administrative necessity based on the Constitution. Of which the part of consolidating the foundation of the law are to prevent the court from incoherently adjusting the factors to be considered as well as to define the standard drawn from the constitutional norms that legally constricts all the administrative institutions including the court itself. And these would be the most effective methodology for the decision of workers to be laid off though it is originally limited to some extent. In this regard, some points are examined to reach this conclusion, such as following:First, it is primarily regulated on Article 32 of the Constitution that workers should have the subjective rights to be protected from any dismissal including the redundancy. Accordingly, workers may require the legislation against arbitrary dismissal from the employer. It would account for the violation of the dismissal protective principle in either the case that the nation did not legislate the law regarding the prohibition of arbitrary dismissal or it was clear that the regulation was not effective enough. Second, the standards should always be fair and reasonable when to redundant the workers for managerial reasons based on the right to be protected against dismissal of the workers’ which is also drawn from Article 32 of the Constitution. Unless the decision was made through fair and reasonable procedure, the protection would be invalid. Third, fair and reasonable standard to decide the soon to be laid-off workers should be both in the employer’s and the workers’ interests. If the interest is biased with the employer’s, the decision would never be ‘fair and reasonable’Fourth, one of the factors between workers’ livelihood protection and business interests could be considered as higher priority when to decide the dismissal in each practical situation whereas those factors should impartially considered from the first place in principle. Lastly, applying the objective standard to discern such factors is always difficult to manage in the legal field and accordingly this is always untenable. Yet, the essential factors regarding about the principle on the right to be protected against dismissal, as The Constitutional Federal Court as well as The Federal Labour Court in German acknowledges, should be the protective factors considering workers’ livelihood such as their age, period of their successive service or whether there is any dependant living with them.