직무능력·성과 부족과 해고의 정당한 이유 - 관련 판례의 고찰 -

Article 23, Clause 1 of the Labor Standards Act requires justifiable reasons for dismissal, and this applies to not only disciplinary dismissal upon violation of corporate decorum, but dismissal on the grounds of personal capability prompted by a worker’s failure to meet those performance expectations. To encapsulate the judicial precedents encompassing work performance related dismissals, the grounds for which such dismissal can be recognized as fair is as follows: first, based on empirical evidence it must be determined whether there was indeed a lack of work performance competency. Such incompetency must exist objectively, and exist notably enough to legitimize any dismissal. Second, performance assessment must be justly evaluated in accordance with a rational basis. Third, the opportunities for reformation such as retraining or redeployment to enhance work performance must be taken into consideration. In order for a firm to remain functional and meet targeted goals, dismissal cannot be avoided when work performance levels are significantly underwhelming; however, such dismissal must be considered a last resort approach when a contractual relationship can no longer be maintained based on social norms. In the rigid labor market status quo where a previously dismissed worker has difficulty finding a new job of quality, endowing the inherent risk of employment if work expectations are not met entirely to the worker at the mercy of the employer through dismissal is inappropriate. Judicial precedents, where grounds for dismissals are lawfully recognized only after factual evidence of significant incompetency has been confirmed despite opportunities for improvement that were given, share the similar sentiment as aforementioned.