절차위반 징계의 효력 - 노조의 인사협의·동의절차를 중심으로 -

This paper is to see the effects of the discipline in case of violation of disciplinary procedures by an industry when it took a disciplinary action on its employees. The gist of this article is as follows. First, the effect of a discipline that did not observe the pertinent procedural regulations despite the fact that there existed general procedural rules on discipline shall be limited. In this case, though, not all the effect of violation of procedural regulation shall be limited considering the fact that a set of disciplinary rules is at the discretion of users. In actuality, the procedural regulation that has influence on the effect of discipline is limited to the information that has a fundamental (core) effect on the defense right of the workers (for example, notification of disciplinary actions and the right of audience). Second, even if there is no regulation that guarantees the procedural rights in the disciplinary regulations of the workers, the discipline that does not guarantee the procedural right of the workers in actual disciplinary procedure shall have only limited effect. It’s usually based on the constitutional procedural justice and the intent of ensuring the right to work, new norm, and the logic of equity. In addition, what is important is the principle of equal decision on working conditions in Article 4 of the Labor Standards Act. Disciplines, especially disciplinary procedures among them, are working conditions, and therefore the procedural right of workers must be guaranteed at an equal level with users. Third, the legal principle of waiver and the abuse of the right of consent that aprecedent has deployed in relation to the consent clause in discipline of union was unfair. The precedent that has determined it as a waiver of the right of consent should be construed as an exercise of the veto, and it is unreasonable to construe it as that the union waived its own right. The precedent has determined it as the abuse of the right of consent (or the exercise of veto) by the union based on the procedure of consent and related actions, but they have been rightly assumed in the exercise of the right. Criteria to judge the abuse of the right of consent is whether the union exercised its right of veto despite the misconduct of any employee violated the order of an industry severly hindering the exercise of the right of discipline. In this case, the exercise of the right by the trade union shall be determined as something that infringes the right of disciplinary action by the users fundamentally.