부당해고와 임금청구

Abstract

While the dismissal of workers is unavoidable to maintain a capitalist society, it causes serious pains to certain workers who can not live without wages and brings big tragedy to the society. Therefore, Article 23, Clause 1 of Labor Standards Act prescribes that an employer shall not dismiss a worker without just cause to protect workers from unfair dismissal. However, the Act does not have any clause addressing the effect of unfair dismissal violating Article 23, Clause 1 of Labor Standards Act. There are two theories, wage claim theory and damage compensation theory, about legal grounds of retroactive wage claims for the unpaid wages during dismissal period. In Korea, courts and scholars consistently say that a dismissal without just cause is void at all. Therefore, unfairly dismissed workers are entitled for a claim for damages in amount of wages that they could have earned without the dismissal against employers according to the Civil Code Article 538 Clause 1 which provides the consequence of the assumption of the risk because the dismissal is void and workers was not be able to work by the fault of employers. As no remedy could compensate perfectly the damages caused by an unfair dismissal, reinstatement and payment of wages for the period of dismissal based on invalidity of unfair dismissal theory seem to be ideal remedies for unfair dismissal. While these remedies were considered to be appropriate as a judicial response to protect employees in past when working conditions were very bad and social welfare system was not so well established, it is doubtable if such simple remedies for unfair dismissal are reasonable at present when social and economic situation has drastically improved. There is a wide range of unfair dismissals from a malicious dismissal which is manipulated by employers to exclude employers from working place to simple violation of procedural regulations. It is likely to be unreasonable to treat all the dismissals equally based on the same theory of invalidity of unfair dismissal: For a malicious dismissal case, the court's affirmation of invalidity of the dismissal and the court's award of a retroactive damages for the unpaid wages are not sufficient remedies; however, the same remedies are excessive for a simple procedural violation case. In a case that it is unreasonable to consider a unfair dismissal as invalid like a simple procedural violation case even though the dismissal is without just cause, we needs to decide that the dismissal is not void but illegal based on tort theory, which we need to calculate reasonable amount of damages depending on the responsibilities of employers by deducting interim earnings without a cap permitting an offset considering faults on the side of employees. On the other hand, in a malicious dismissal case, it is desirable to add punitive character to damages for mental distress. Furthermore, to stop continuing disputes related to the malicious discharge, new constructions of law will be necessary to implement adequate remedies for wrongful dismissals such as requiring the employers to permit workers to work, and by delivering court orders of preliminary injunction for a prohibition of employers' hindrance of work or by rendering court decisions of reinstatement based on the constructions.