경력사칭을 이유로 하는 징계해고의 정당성 - 대법원 2012. 7. 5, 선고2009두16763 판결을 중심으로 - (A Study on the Justification for Disciplinary Dismissal by the reason for Misrepresentation of Career - With Focus on the Supreme Court Ruling July 5, 2012, 2009du16763 -)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 26권 / 3호 / 241 ~ 266페이지
· 저자명 : 김소영

초록

This author has examined the standards for judgment on the justification for disciplinary dismissal by the reason for misrepresentation of career and analyzed Supreme Court's rulings which have been done in recent years. In addition this author has analyzed the difference between the judicial rulings and the Supreme Court Ruling July 5, 2012, 2009du16763.
Disciplinary actions are unfavorable treatment taken against those who have breached the company's policy to uphold order. An employer use the disciplinary dismissal action against an employee in the event that he/she obtains employment by way of misrepresenting important facts in the documents submitted or information given to the company such as education and employment, etc.,There is no specific provisions for the regulation of the employer's disciplinary actions in the Labor Standards Act(LSA). But the Article 23 of the LSA provides that no employer shall dismiss, lay off, suspend, or take other punitive measures against an employee without a justifiable reason. An employee can not be punished without a justifiable reason of discipline and fair procedure of discipline.
Discipline is not an employer's right unless promised in the rules of employment or collective bargaining agreement, etc. Judicial rulings gave decisions upon disciplinary dismissal by the reason of misrepresentation of education or career as follows; Where an employee is found to have falsified or concealed his/her education, career and experience when joining company or where such truth is found during the course of his/her service to the company, if the company knows of such truth at the point of recruitment, it might choose not to hire him or at least might choose not to provide the same working conditions. This assumption justifies taking appropriate disciplinary dismissal actions.
This author argued that dismissal is justifiable only when the employee committed so serious a violation that the company could not continue the employment relation any longer. Although the employee obtained employment by way of misrepresenting important facts in the documents submitted or information given to the company such as education and employment, etc., if the misrepresentation of career is not too serious enough to be able to continue the labor contract, the disciplinary dismissal becomes unfair.

영어초록

This author has examined the standards for judgment on the justification for disciplinary dismissal by the reason for misrepresentation of career and analyzed Supreme Court's rulings which have been done in recent years. In addition this author has analyzed the difference between the judicial rulings and the Supreme Court Ruling July 5, 2012, 2009du16763.
Disciplinary actions are unfavorable treatment taken against those who have breached the company's policy to uphold order. An employer use the disciplinary dismissal action against an employee in the event that he/she obtains employment by way of misrepresenting important facts in the documents submitted or information given to the company such as education and employment, etc.,There is no specific provisions for the regulation of the employer's disciplinary actions in the Labor Standards Act(LSA). But the Article 23 of the LSA provides that no employer shall dismiss, lay off, suspend, or take other punitive measures against an employee without a justifiable reason. An employee can not be punished without a justifiable reason of discipline and fair procedure of discipline.
Discipline is not an employer's right unless promised in the rules of employment or collective bargaining agreement, etc. Judicial rulings gave decisions upon disciplinary dismissal by the reason of misrepresentation of education or career as follows; Where an employee is found to have falsified or concealed his/her education, career and experience when joining company or where such truth is found during the course of his/her service to the company, if the company knows of such truth at the point of recruitment, it might choose not to hire him or at least might choose not to provide the same working conditions. This assumption justifies taking appropriate disciplinary dismissal actions.
This author argued that dismissal is justifiable only when the employee committed so serious a violation that the company could not continue the employment relation any longer. Although the employee obtained employment by way of misrepresenting important facts in the documents submitted or information given to the company such as education and employment, etc., if the misrepresentation of career is not too serious enough to be able to continue the labor contract, the disciplinary dismissal becomes unfair.

참고자료

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