직장 내 괴롭힘에 대한 구제의 확대방안 소고

This article explores new remedies against harassment at work. It does so by the two interpretational renovations as follows. The first one is to extend the regulatory remit of the just dismissal etc clause in the Labour Standard Act. The courts held in several cases that some treatment such as wage reductions is beyond its remit on the ground that ‘disciplinary punishment’ in the clause does not include wage reductions which are not results of disciplinary actions by an employer. This article is of the view that the clause makes all unfavourable treatment including wage reductions under justifiability test. It derives its argument by means of the systemic interpretation of the clause. The clause as is interpreted by this article makes some treatment such as wage reductions, the intention of which is to put some workers under severe hardship, thus leading them to resign, under its judicial remit. The second one is to give the right to refuse providing work to workers suffering from harassment at work. This right is drawn from an employer’s duty of care for workers in the law of obligations. If an employer violates the duty of care implied in employment contract by imposing unnecessary and insulting work on an worker with a view to harasses he or her, it follows that the worker has a right to refuse to perform such work. This means that an employer’s disciplinary action against the worker on the ground that he or she refuses to do so is unjustifiable and void. Moreover the second one includes the right to refuse to perform certain work which encroaches upon constitutional rights of a worker, such as the freedom of conscience. Suggesting such interpretational renovations, furthermore, this article emphasizes their significance in recent situations where legislative changes for combating harassment at work are on the agenda of Parliament. It maintains that such legislative changes should be supplemented by verifying those renovations through adding them to the legislative changes. Moreover, this article those interpretational renovations are necessary to provide easily accessible remedies with workers suffering from harassment at work.