earticle

영어

The custom of employment in Korea is based on a lifetime employment system which guarantees a regular retirement age. The wage system is, furthermore, also based on proportion to the length of service rather than the performance-related pay system. Under these customs of employment, the interpretation is natural that a dismissal for managerial reasons should be strictly and narrowly restricted. Here authors intend to analyze and criticize the case law on dismissal for managerial reasons by the Supreme Court of Korea. Conclusions are as follows: First, Article 24(1) of the Labor Standard Act(LSA) provides that an urgent managerial needs is required to dismiss employee(s) for managerial reasons. The Supreme Court holds that a future managerial crisis is also included in an urgent managerial needs above. Authors suggest, however, that a future managerial crisis should not be included in the urgent managerial needs, because this requirement should be narrowly and strictly interpreted. Second, Article 24(3) of the LSA provides that an employer should consult in good faith with the representative of its employees to dismiss for managerial reasons. The Supreme Court holds that it is possible for an employer not to consult with the representative where a labor union or another employee’s organization is not. Authors suggest, however, that this consultant procedure should be interpreted as an absolute requirement by the LSA to dismiss for managerial reasons. So we suggest that the dismissal for managerial reasons is never be justified without the consultant procedure. Third, it is a definition of the representative. The Supreme Court holds that, where a dismissal for managerial reasons includes non-union members, the employer should consult with the representative of the non-union members. Authors suggest, however, even though the dismissal includes the non-union members or only non-union members, the employer could and should consult with the representative of its employees including non-union members. In this case, where the representative fails to represent in good faith the non-union members, the representative may take responsibility of civil liability etc. against the non-union members. Finally, Article 24(3) of the LSA also provides that an employer shall give a notice 50 days prior to dismissal day to the representative. The Supreme Court holds that, where the employer has a sufficient consultation with the representative, the employer could give a notice of shorter days than 50 days above. Authors suggest, however, that a notice 50 days prior to the dismissal day in principle should be kept. Of course after a notice of the 50 days above by the employer, both the employer and the representative could shorten a period of consultation by reaching an agreement.