근로자 정신건강 보호 방안으로서의 의제해고 재조명

When a laborer who has suffered from excessive workloads resigns from work without a new job decided, he/she is needed to be protected in that the resignation makes the laborer take enormous disadvantages, since it is not due to the laborer’s attributable reasons even though he/she handed in his/her notice of resignation in person. There is a limit, however, to nullify the expression of resignation with the legal principle of ‘manifestation of unreal intention.’ Therefore, ‘constructive dismissal’ is thinkable as an institutional strategy to regard such resignation as a dismissal. If a reason of laborer’s resignation is laid on an employer’s directive which is enough to correspond to workplace harassment, or otherwise breaches an essential obligation of the employer, the resignation can be interpreted as a dismissal. An employer’s duty of safety consideration is an essential obligation in that it functions as not only a premise of a laborer’s obligation but also an internal limitations of an employer’s directive. The employer should try not to invade the laborer’s mental health and personality as well as his/her physical health and safety. If a directive which causes the situation where the laborer is swamped with excessive workloads enough to invade mental health, the directive can be interpreted as the one beyond the limitation of an employer’s directive, violating the essential obligation of an employer, which justifies the laborer’s expression of resignation. Once the expression is regarded as a dismissal, the employer should prove justification his/her acts which have led the laborer to hand in resignation. Concerning that the idea of constructive dismissal has come up with the intention to protect laborer’s mental health, by the way, this system needs to accord with directionality required to protect laborer’s mental health. It is emphasized to prevent laborer’s mental health from getting damaged in the way to reduce hazards through changing stressors. Considering this directional nature, the system should function as a mechanism that makes an employer look how his/her directive works and control the directive on most days. Such preventive approach, by the way, might be difficult to achieve performance of duty of an employer because it can’t give a huge incentive to the employer, since its utility is not immediately noticeable compared to efforts put from the perspective of the employer, which is way different from ex-post control. Therefore, in order to induce an employer to perform a duty for protecting a laborer’s mental health on most days through the existence of constructive dismissal system, the degree of disadvantages which an employer would undergo when a laborer’s mental health is damaged should overwhelm the degree of advantages that the employer would gain when he/she neglects or induces a laborer’s excessive workloads. To this end, it should not be difficult to embrace a certain expression of resignation as a dismissal and the burden on an employer should be huge to bear, then. Accordingly, this paper suggests to alleviate a laborer's burden of proof and to introduce strengthened monetary compensation as remedial order in principle.