업무저성과 해고의 정당성 판단에 관한 검토 — 대법원 2023.12.28 선고 2021두33470 판결을 중심으로 —

Abstract

This paper examines the criteria for determining the legitimacy of dismissals due to low job performance, focusing on a Supreme Court ruling (2021두33470). In the Korean labor law, there is the lack of clearly established criteria for determining the legitimacy of general dismissals for employee's personal reason. It seems to cause conflicting assessments for rigidness of our dismissal protection legislation. And at the same time, it can explain why most of dismissals related with low-performer use to proceed as the form of disciplinary dismissals. Moreover, it holds that the legitimate reason for dismissing an low-performing employee should be assessed by considering whether the continuation of the employment relationship is impossible according to societal norms, taking into account the employee's status and the roles required. Additionally, This judgement suggests three specific requirements for assessment : ‘① Fair and objective evaluation’, ‘② Falling short of the expected minimum levels for a significant period’, and ‘③ Low potential for improvement’. This study adopts a comparative approach, contrasting the reasoning of the supreme court's decision with that of the lower court's decision which denied the legitimacy of the dismissal. The research is based on the awareness of the issue that, as the scale of dismissals increases, the regulation of our dismissal protection legislation weakens. It emphasizes the need for continuous discussion to eliminate legal uncertainty about dismissal on the premise of strengthening protections against mass layoff. The criteria for determining the legitimacy of general dismissals should to be clear in accordance with the intent of the law. The judgement is significant as it acknowledges the legitimacy of dismissals due to low performance and provides criteria for such judgments.