해고의 절차 ― 해고사유 등 서면통지의무 제도의 도입을 계기로 살펴 본 근로기준법상 해고절차에 대한 몇 가지 의문 ― (Dismissal Procedure: Inquiry on Several Questions Regarding Statutory Procedures with the Introduction of the System Imposing Liability to Give Written Notice of Reason of Dismissal, etc.)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 25호 / 85 ~ 110페이지
· 저자명 : 박은정

초록

When considering the fairness of dismissal under the Labor Standards Act, there is a tendency to give much less attention to the question of procedural lawfulness than to that of substantial fairness. The reason is not clear, but if the substantial fairness is guaranteed, the advance notice of dismissal as a statutory procedure for dismissal becomes not that important even though it is a statutory procedure for dismissal. It is that question that makes the present writer start to write thie paper.
On the other hand, there is a statutory procedure for dismissal recently introduced, namely the written notice system on the reason for dismissal, etc. Though two statutory procedures for dismissal come to coexist with each other thereby, the correlation between them may cause various confusion, so it seems desirable for both of those systems to be integratedly operated.
When considering the dismissal violating the statutory procedure for dismissal as invalid, it may raise the question where the legitimacy of the dismissal should be dealt with, and the object of the application for remedy for unfair dismissal to the Labor Relations Commission under the Labor Standards Act, as it stands, is 'unfair dismissal, etc.' As to unfair dismissal, it is necessary to consider substantial fairness and procedural lawfulness together, and it is clear that the current Labor Relations Act includes the dismissal violating the statutory procedure for dismissal as the object of the application for remedy for unfair dismissal as well.
Finally, it is the proper interpretation of the current law that the legal principle of the restriction of dismissal through the statutory procedure for dismissal under the Labor Standards Act is not applied to the termination of employment contracts due to the ending of the term of contraction of fixed-term employees, but there seems no necessary reason why the procedural protection should be necessarily given only to the termless contract employees. On the contrary, it seems to me that it might be the proper spirit of the procedural protection system to interpret it to include non-regular employees within the scope of procedural protection.

영어초록

When considering the fairness of dismissal under the Labor Standards Act, there is a tendency to give much less attention to the question of procedural lawfulness than to that of substantial fairness. The reason is not clear, but if the substantial fairness is guaranteed, the advance notice of dismissal as a statutory procedure for dismissal becomes not that important even though it is a statutory procedure for dismissal. It is that question that makes the present writer start to write thie paper.
On the other hand, there is a statutory procedure for dismissal recently introduced, namely the written notice system on the reason for dismissal, etc. Though two statutory procedures for dismissal come to coexist with each other thereby, the correlation between them may cause various confusion, so it seems desirable for both of those systems to be integratedly operated.
When considering the dismissal violating the statutory procedure for dismissal as invalid, it may raise the question where the legitimacy of the dismissal should be dealt with, and the object of the application for remedy for unfair dismissal to the Labor Relations Commission under the Labor Standards Act, as it stands, is 'unfair dismissal, etc.' As to unfair dismissal, it is necessary to consider substantial fairness and procedural lawfulness together, and it is clear that the current Labor Relations Act includes the dismissal violating the statutory procedure for dismissal as the object of the application for remedy for unfair dismissal as well.
Finally, it is the proper interpretation of the current law that the legal principle of the restriction of dismissal through the statutory procedure for dismissal under the Labor Standards Act is not applied to the termination of employment contracts due to the ending of the term of contraction of fixed-term employees, but there seems no necessary reason why the procedural protection should be necessarily given only to the termless contract employees. On the contrary, it seems to me that it might be the proper spirit of the procedural protection system to interpret it to include non-regular employees within the scope of procedural protection.

참고자료

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