layoffs are unfair

▲ Kim Ki-duk, Representative of Saenal, Labor Law Firm

1. “Did you lose the layoff case?” I have been annoyed since Monday morning. As a lawyer who has been representing layoffs, it would be strange if I didn’t feel bad about hearing this. But beyond feeling a little messy, I tapped on the PC keyboard annoyingly. No matter what anyone says, nothing can be done I have no memory of losing as I have represented dozens of large-scale layoffs over the past 10 years in litigation invalidation. I have been proud of myself that I have won all the layoffs I was in charge of, such as Korea Airports Corporation and Faurecia. But then, what do you mean when the secretary general gets irritated by these words? I was served with the judgment last Friday, but I hadn’t read it until I heard it. I didn’t want to read the reasons for the judge’s decision, who ruled that the layoffs were justified. In fact, it was for this reason that the judgment was automatically served after delaying the service. The first trial judgment in the case of the dismissal of Winia Daewoo struck me with such annoyance.

2. “How can we accept only the claims of the management without accepting any of our claims?” After an annoying morning, after reading the verdict, I called Mr. Park, the CEO of the dismissal, and he said to me as if he had been waiting. He could not comprehend the court’s ruling, which enumerated each of the requirements for dismissal one by one and stated that all of them were met. In response to our claim that the dismissal did not meet the requirements for dismissal stipulated in Article 24 of the Labor Standards Act, such as urgent managerial necessity, efforts to avoid dismissal, rational and fair selection of persons to be dismissed, and consultation with workers’ representatives, the court ruled that the requirements were not met. He wrote in the judgment that he had it. Reading it, he must have been as annoyed as I was. no. As a party, you must have been angry. So you’re asking me how can I do that? After being fired in May 2019, he applied for unfair dismissal relief to the Labor Relations Commission, but he did not receive relief. It looked like he was angry that he could not accept the unfair dismissal. Since the dismissal was judged not to be unfair, the way I explained that I had written the judgment was considered miserable. So I went straight ahead. As a lawyer in charge, I gave my opinion as a lawyer in charge of the reasons for the judgment that I did not understand, and that the judgment was unfair.

3. In fact, I didn’t even expect that the courts would accept my argument that an urgent business need did not exist, after the company had been in the red for many years. They argued that they did not meet all the requirements for dismissal. However, I had high expectations for not selecting a reasonable and fair person for dismissal. Although it seemed that the selection criteria were formally balanced, including both employer and worker circumstances, a closer look at the criteria made it clear that the elderly and long-term employees were selected as subjects of layoffs. If so, it should have been reasonably and fairly judged that the subject of dismissal had not been selected, but the judgment did not. Citing the final ruling and ruling by the Labor Relations Commission and the court on the dismissal case based on the same standards, it is somewhat inappropriate, but citing various circumstances and saying “rationality and fairness in the overall and comprehensive dimension” was acceptable and decided that it was inevitable. Just because there has been a final judgment that the dismissal was justified in a case of dismissal based on the same criteria, it does not mean that the selection of the person to be dismissed based on the same criteria is of course justified. The question is whether the standards really fall within the reasonable and fair selection criteria for dismissal as stipulated by the Labor Standards Act. Even if the court ruled hundreds of times in the past as justifiable, if it was not based on the reasonable and fair criteria for selection of persons to be dismissed as stipulated by the Labor Standards Act, it had to be decided differently. A civil trial is a trial in which the court decides according to the arguments and evidence of the plaintiffs. If the parties do not properly assert and prove, the outcome of the judgment may be different from that judgment in a subsequent case. But the reality of the trial is not like that. We follow the judgment of the previous court, and we follow the judgment of another court. So, just as the company did in this dismissal case, the plaintiffs claim that the court’s judgment be attached as it is, and the court is adjudicating it accordingly. I had said this to him until the dismissed representative asked about the possibility of winning and the cost of litigation in case of appeal against the judgment of the first instance court.

4. In this country today, layoffs are justified. No, it is said that layoffs are justified in the world of capital beyond this country. It is difficult to find any more argument that the dismissal of workers by employers is unfair. In the 1990s, when an amendment to the Labor Standards Act was attempted to legislate layoffs, there is no longer any resentment that layoffs were unfair. There is no mention of the abolition of the layoff system because it is unfair in the Labor Promise Book and the Policy Data Book, which includes the regularization of non-regular workers and the effectiveness of remedies for unfair dismissal. It has become a different world 20 years after the legislation on layoffs was enacted. In this regard, you may ask me what has changed, saying that even before the legislation was enacted, the court precedent had already recognized the dismissal system while stating the requirements for dismissal. It is true that the court judged the justification of the dismissal by specifying the conditions for dismissal even before the Labor Standards Act stipulated the dismissal. But what I’m trying to say here is about the existence of the argument that layoffs are unfair. Whether or not there is a law on dismissal, whether there is a court ruling or not, the question is whether there is an argument that the dismissal is unfair. will be. It’s not just about workers’ anger.

It was argued that such layoffs were unfair in this country. In the 1980s, when the courts began to judge the dismissal case in earnest by stating the legal principles, there were also arguments from labor law scholars who had fundamental questions about the dismissal itself as described above. But today, there is no question of layoffs. No one is questioning that an employer can lay off employees for business reasons. They merely claim that there is no urgent business need, that no efforts have been made to avoid dismissal, that the person to be dismissed has not been selected based on reasonable and fair criteria, and that the workers’ representatives such as the majority union have not been notified and consulted. A more stringent legislation is being advocated.

5. As a lawyer who has been representing workers as a lawyer while advocating for workers’ freedom and rights right after the law of dismissal was enacted, I cannot say that the dismissal is justified, no matter how different the world may be.

Even if we look at the employment contract, which is a contractual relationship between workers and employers, we cannot find the validity of the legal principle that layoffs are justified. An employment contract, like many other contracts, has to be fulfilled by the parties to whom it is concluded. Termination is the employer’s failure to perform the contract. If it is due to a cause attributable to the worker, such as in the case of disciplinary dismissal, it may be judged that the contract termination is justified in terms of non-performance or incomplete performance of contractual obligations, but it is not a dismissal. A dismissal refers to a dismissal due to an employer’s business circumstances, and there is nothing wrong with the worker who is notified of the contract termination. It is the user’s fault for canceling the contract. A dismissal is when an employer refuses to perform a contract with a worker due to his/her management circumstances. It does not mean that an employer who has concluded a labor contract with a worker will cease to exist due to the closure of the company. Still, users continue to do business the way they have been doing. Although it is clear that the contract is not being performed due to the employer’s circumstances, a dismissal is an urgent business necessity, an effort to avoid dismissal, reasonable and fair selection of a target for dismissal, and notification to and consultation with workers’ representatives. will become That is, the dismissal system stipulated in the Labor Standards Act and the dismissal law, which has been judged by court precedents, is thus exempting the employer from liability for non-compliance with the contract. As in the case of the dismissal of Winia Daewoo, the court ruled that the dismissal was justified and not invalid because it met the requirements, thus exempting the employer from liability.

But, as I have been doing for over 20 years, I want to make it clear again. Layoffs are unfair.

Representative of Saenal, Labor Law Office ([email protected])

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