불이익취급 부당노동행위의 유형별 판단방법 ― 부당해고등 판단에 종속된 부당노동행위 판단의 독립을 위하여 ―

Cases involving unfair labor practices that entail disadvantageous treatment can be classified into three categories. These are classified according to the content of the disadvantageous treatment. (1) A typical instance of combined cases (Type 1) is one in which adverse treatment is imposed through disciplinary actions or dismissals under Article 23(1) of the Labor Standards Act. The second category of unfair labor practice cases (Type 2) encompasses instances where adverse treatment is imposed through measures not related to personnel dispositions as outlined in Article 23(1) of the Labor Standards Act. A notable example of this would be “collective discrimination against union members through performance evaluations.” Thirdly, non-typical combined cases (Type 3) are cases involving adverse treatment, such as “refusal to transfer employment when changing subcontractors.” These cases are conceptually different from dismissal but are handled as unfair dismissal remedy cases. The legal principle that “unfair labor practices involving adverse treatment require intent, and the burden of proof lies with the employee side” originates from Type 1 and should be applied solely to Type 1. Due to this legal precedent, in cases combining unfair dismissal and unfair labor practices, the determination of unfair labor practices tends to be subordinate to the determination of unfair dismissal. In the case of Types 2 and 3, a reestablishment of distinct criteria from Type 1 is imperative. By invoking presumptive legal principles, the evidentiary burden should be mitigated for the employee, and the sequence of adjudication in consolidated cases should be altered to permit an autonomous assessment of unfair labor practices.