휴직과 복직에 관한 법적 쟁점-사용자의 휴직명령 및 복직 거부에 대한 정당성 판단을 중심으로-

Abstract

ⅰ) Employers sek to utilze the labor force of an optimized structure for thesustainable management of the company, and for this purpose, they have the so-caledcorporate management personel rights such as hirng and placement of workers, changeof jobs, leave of work, and suspension from work. Since the human resource right is ameans of alowing considerable discretion to the employer within the scope necesary forwork through the labor contract relationship, the employer may order leave from workif there is a justifable reason based on the personel right. ⅱ) The reasons for such leave are generaly stipulated in the employment rules orcolective agrements. However, even if the employer is given the right to order leavebased on certain reasons acording to the regulations,'the purpose and actual functionof the leave rule, whether it is reasonable to exercise the right to leave order, and thestatus and economic disadvantages that the worker wil receive. Taking into acount alcircumstances, justifcation can be recognized only when an employe is unable toprovide work for a considerable period of time or it is demed very inapropriate toprovide work. ⅲ) In the case of a leave of absence order due to reasons atributable to the employer,this is considered as a de facto shutdown, and in principle, an alowance equivalent to70% of the average wage should be paid in acordance with Article 46 of the LaborStandards Act. In this case, an amount les than that amount or unpaid leave is posible,subject to the consent of the worker. However, it is a question whether the employercan exercise unpaid leave for management reasons without the consent of the worker. In this case, it is inevitable that even the right to claim the employe's leave of absenceas a security device guaranted in Article 46 of the Labor Standards Act can be excludedThe verifcation of management requirements and the reasonablenes of the company'sexercise of the right to order leave wil be an important criterion for determining thelegitmacy of unpaid leave. ⅳ) Because leave of absence is a period in which the provision of work is temporarilysuspended, the employer is obligated to reinstate the employe acording to theemployment rules or the reinstatement procedures set forth in the colective agrementwhen the period of leave expires or the reason for the leave of absence expires. If anemployer refuses to return to work without a justifable reason, Article 23, Paragraph 1of the Labor Standards Act has the character of a general provision to protect theemploye from the employer's dispositon. On the other hand, in general, if a workerdoes not return to work acording to a colective agrement or employment rules, it isprescribed as voluntary retirement. However, this should be interpreted as specifying thereasons for dismisal, not as reasons for retirement. v) Lastly, with respect to the relief for an unfair leave order, there is no penalty forthe case where an employer gives an employe an unfair leave under the curent law. However, if there is an order for unpaid leave that lacks legitmate reasons andprocedures, the relevant worker may file an aplication for relief from unfair leave tothe Labor Commision and receive relief after being recognized as an unfair leave order(Article 28, Paragraph 1 of the Labor Standards Act). In aditon, since unfair leave isinvalidated by the judiciary, it is posible to find a way to obtain judicial relief by filnga lawsuit to confirm the invalidation of the dispositon of leave at the court.