장애인에 대한 면직처분의 정당성과 사용자의 편의제공의무

Abstract

Before the “Act on Employment Promotion and Vocational Rehabilitation for Disabled Persons” (AEPVRD) was enacted, the Korean Supreme Court dealt with the cases of treatment of disabled employees in the workplace. First, the Court did not consider such cases as a violation of the anti-discrimination law. Second, the Court classified disabled employees in two ways, specifying whether the employee's disability or injuries are due to a job-related accident or not. If job related, the Court imposed the employer's obligation to consider the disabled or injured persons. However, if the employee's accident or injuries were not job-related, justification (e.g., for firing, transferring, etc.) for business reasons would receive more consideration. Even though the employer did not accommodate the disabled person, the Court did not impose the employer's obligation to accommodate. Since the enactment of the AEPVRD, there has yet to be a claim made to the Supreme Court concerning the employer's duty to accommodate a disabled employee. However, the Administrative Court recently has dealt with one such case. Regardless of the terminology selected by the court, and regardless of whether the accidents or injuries are job-related or not, in this case the court imposed on the employer the duty to accommodate the disabled employees. However, the court did not decide this case based on the AEPVRD. Still the employer's duty to accommodate has limitations in its interpretation because the employer's obligation to consider the disabled persons has to be interpreted based on the employment contract. In this article, I analyze the Supreme Court decisions before the enactment of the AEPVRD and how the Administrative Court approached the employer's duty to accommodate disabled persons, and suggest how Korea should approach and interpret job-related and non-job-related accidents or injuries. This needs to be clarified in order to provide accommodation for the employees, because it is not only the duty of employers but also the right of the employees.