원직복직과 해고예고수당

Abstract

Article 26 of the Labor Standards Act provides as follow: “When an employer intends to dismiss an employee (including dismissal for management reasons), he/she shall give the employee a notice of dismissal at least 30 days in advance of such dismissal, and, if the employer fails to give such advance notice, he/she shall pay such employee a 30 days’ ordinary wage at the least.” This regulation is aimed at protecting against the difficult livelihood of an employee due to sudden dismissal of an employee and losing his/her job. The employer can choose whether to give an advance notice of dismissal to the employee or pay a dismissal notice allowance. When an employer give an employee an advance notice of dismissal, the employee is obligated to offer labor even during the dismissal notice period, and the employer can earn economic benefits from the employee's provision of work. However, in many cases, althought an employer gives up such economic benefits, he/she pays the dismissal notice allowance without an advance notice of dismissal because of reduced trust in a worker. This is why it is hard for the employer to take the employee into the workplace as before. Therefore, the employer pays the dismissal notice allowance to the employee in order to avoid the penalty. If it is determined that the employer's dismissal is unfair, the dismissal becomes invalid and the employee returns to the workplace. If the employee restarted working at the company as before, there would be no need for the employee to find a new job, so there would be no need for the employer to pay the dismissal notice allowance. Nevertheless, paying the dismissal notice allowance is beyond the purpose of an advance notice of dismissal. If the dismissal was invalid, the legal effect should be applied equally to employees and employers. However, it is not fair to ask the employer to still acknowledge the effect of dismissal and pay the dismissal notice allowance even though the effect of invalidation of dismissal applied to an employee. In addition, employees who received the dismissal notice allowance will gain much better economic benefits as the allowance than those who got an advance notice of dismissal. This is not fair even among employees. Therefore, if he/she returns to the workplace due to the unfair dismissal, the dismissal notice allowance will have to be returned to the employer because it is unjust enrichment in accordance with the principle of dismissal invalidation. In addition, the main text of Article 26 of the Labor Standards Act will have to be amended as follow: “When an employer intends to dismiss an employee (including dismissal for management reasons), he/she shall give the employee a notice of dismissal at least one month in advance of such dismissal, or, he/she shall pay such employee one month’s ordinary wage at the least.” Furthermore, it should be eliminated the unnecessary debate, and be maintained the protection of equal value and the principle of proportionality among employees who were dismissed.