사용자의 출근명령과 부당해고 구제절차의 구제이익

Abstract

Unfair dismissal remedy system which is an administrative remedy procedure about unfair dismissal has been implemented since amendment unfair dismissal remedy system, dismissed worker could get faster and more economical protection than civil procedure by court. For keeping unfair dismissal remedy application, interests of remedy must be approved. However, labor relations commission has mostly denied interests of remedy of applicant in cases that employer ordered worker go to work after dismissed worker applied for remedy to labor relations commission. It is not a problem to deny interests of remedy in case applicant goes to work for following employer’s order. But, it is a problem to deny interests of remedy uniformly even though applicant refuses that commuting order or could not accept it against his/her will. This article aims to review that which criterions as judging presence of interests of remedy are suitable for purpose of unfair dismissal remedy system. For that, firstly, it is necessary to check a definition of ‘interests of remedy’ and legal nature of ‘commuting order’. Secondly, it will find reasonable interpretation whether commuting order can extinguish interests of remedy under which conditions. Also, it will review whether commuting order of employer order is valid after applicant applied monetary compensation regarding the monetary compensation system introduced in 2007. Interests of remedy of unfair dismissal remedy application are not naturally denied by the condition of the employer's commuting order and extinguished only when it can be judged that the dispute is actually terminated considering all matters of the dispute. Therefore, when commuting order of employer is judged to be untruthful, the interests of remedy should still be affirmed in spite of the commuting order. Furthermore, after the employee has applied for compensation, the commuting order should not have any effect on the interests of remedy.