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Judgment of the Effectiveness of Disciplinary Action for Procedural Defects that Occurred in Disciplinary Action for which Substantive Justification was Recognized

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2024, 12(3), pp.487-518
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law
  • Received : August 7, 2024
  • Accepted : August 24, 2024
  • Published : August 31, 2024

Lee Sang hoon 1

1호서대학교

Accredited

ABSTRACT

The court operates the so-called legal principle of abuse of the right to dismiss so strictly that dismissal can be said to be invalid in principle. However, the requirements and procedures for disciplinary dismissal appear to be applied more strictly. As a result, failure to follow minor procedures places an unfair financial burden on business owners, even in cases where actual dismissal is significant. This is because, if the dismissal is invalid, in addition to the so-called back pay, which is the salary from the time of dismissal until the invalidity is confirmed, you must also pay alimony for the invalid dismissal. Therefore, this paper introduces the basis for disciplinary dismissal and the differences between disciplinary dismissal and other procedures, and reviews the reasons and procedures for dismissal necessary to legally carry out disciplinary dismissal based on specific cases. Disciplinary dismissal is one of the disciplinary measures and is a sanction imposed by the employer for an employee’s violation of corporate order. In other words, it is the same as punishment given to workers who act contrary to the corporate order based on the employer’s authority to establish and maintain the corporate order as an indispensable right for the existence of the company and smooth operation of the business. When you think of disciplinary action, you may often think of disciplinary dismissal. However, disciplinary action includes warnings, reprimands, pay cuts, suspensions from work, demotion, and dismissal, with varying degrees and effects. Disciplinary dismissal is the highest of these disciplinary actions. It corresponds to a level of punishment. However, the basis for disciplinary dismissal must have a legal basis and a basis in the employment rules, but the Labor Contract Act does not provide specific factors to consider simply by making these comprehensive and general provisions. There are various types of disciplinary action other than disciplinary dismissal. This is because the degree varies widely, and it is very difficult to present all general circumstances in advance. For this reason, the effectiveness of the Labor Contract Act or the purpose of disciplinary action is judged from the following perspectives: the presence or absence of disciplinary provisions in the employment rules, the reasonableness of the disciplinary provisions, whether there has been a violation of corporate order, and whether the exercise of disciplinary authority is reasonable. From this perspective, this paper considers that a private university employee committed a crime of embezzlement and was dismissed for disciplinary action. In the retrial process, the union representative stipulated by the employment rules was not invited to participate as a disciplinary committee member, but when he was found guilty in a criminal court, he was found guilty of violating the procedure even though it was a substantive reason for dismissal. I reviewed whether the dismissal was invalid for this reason and further presented an opinion on whether to pay unpaid wages.

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