인사고과를 통한 불이익취급의 부당노동행위 증명방법과 문제점

Abstract

In principle, personnel evaluation of workers belongs to the employer's authority. However, the exercise of right to evaluate workers is not an area of complete discretion. The results of personnel evaluation can be subject to judicial review. The legitimacy of dismissal on the Labor Standards Act and the establishment of unfair labor practices on the Labor Union Act differ in the purpose of the system, so they should be judged independently of each other. The judicial authorities should have the active role to estimate intention to engage in unfair labor practices in cases of unfair labor practices. The court and labor committee should actively utilize their investigative powers based on Article 26 of the Administrative Litigation Act and Article 23 of the Labor Relations Commission Act. It is necessary to shift or ease the burden of proof in cases of unfair labor practices so as to overcome substantial inequality by taking into account the specificity of labor relations, such as information asymmetry.