해고예고와 해고서면통지의 관계와 입법론적 제언

Under the Labor Standards Act, the provisions on advance notice of dismissal (Article 26) and written notice of grounds for dismissal (Article 27) appear to impose a dual dismissal procedure. This requires an employer to provide a written notice of dismissal after first giving an advance notice expressing the intention to dismiss. Controversy has arisen over the interpretation of when the dismissal actually takes effect—whether it occurs upon the delivery of the written notice specifying the grounds for dismissal, or upon the advance notice itself. In particular, when the dates of the advance notice of dismissal and the written notice of grounds for dismissal differ, several practical issues may emerge, such as determining the starting point for filing an unfair dismissal claim or calculating continuous working days. Ultimately, the coexistence of these two procedures within the Labor Standards Act may give rise to unnecessary disputes and confusion. Therefore, it becomes necessary to clarify the relationship between Article 26 (advance notice of dismissal) and Article 27 (written notice of grounds for dismissal). To minimize disputes and interpretive conflicts between employers and employees, clear legislative amendments are required. The first option is to require that a notice of dismissal be given in writing. Under this approach, the document prescribed in Article 27 of the Labor Standards Act shall be specified as a written notice of dismissal. This measure was partially reflected through the establishment of Article 27(3) in the former Labor Standards Act, as amended on January 12, 2014. Under that provision, if an employer specifies the reasons for dismissal and the timing of dismissal in writing, the notice is deemed to satisfy the requirement under paragraph (1). The second option is to require that dismissal be notified in writing while clearly specifying the reasons for dismissal and the timing thereof. This approach would also incorporate the exceptions to the notice-of-dismissal requirement and integrate them into the written notice of dismissal. Specifically, the advance notice of dismissal shall be made in writing, stating both the reason and the effective date of dismissal. The exceptions to advance notice shall be integrated with the written notice of grounds for dismissal, thereby consolidating Articles 26 and 27 into a single, unified provision. First, considering that the method of giving notice of dismissal does not require a specific format, the advance notice could include both the reason and the effective date of dismissal in writing. Second, if an employer fails to provide such advance notice, he or she may pay the employee 30 days’ ordinary wages in lieu of notice. In this case, the employer may still effectuate the dismissal by providing a written notice that includes the reason and timing of dismissal. Finally, this written notice, which specifies both elements, shall be deemed to constitute the effective notice of dismissal.