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초록

영어

This article is aimed at reviewing a recent case of the Supreme Court. It looks at new principles of interpretation on Act on Employment Discrimination on the Grounds of Fixed-term Contract, etc.(AEDGFC) and evaluate them in terms of previous cases and academic commentaries on on the AEDGFC. Furthermore it analyses the established principle of interpretation on reasonablegrounds’ in the AEDGFC, the aabsence of which unfavorable treatment against fixed-term employees has to be unlawful discrimination under the AEDGFC. One of the new principles of interpretation on the AEDGFC is about how unfavorable treatment against fixed-term employees can be ascertained in the area of wages. The Supreme Court held that different types of wages such as basic salary various bonuses service tip must be categorized according to their nature where it is not suitable to compare each type of wages between fixed-term and permanent employees. It also held that whether reasonable grounds of unfavorable treatment against fixed-term employees exist must be decided according to each category of types of wages as a whole. On the one hand, these new principles of interpretation should be welcomed in that the methodology of finding unfavorable treatment against fixed-term employees are clearer. On the other hand, they may lead it more difficult that lower courts can decide that unfavorable treatment is not reasonable. There are two competing views on how reasonable grounds of unfavorable treatment should be established prohibition of arbitrary treatment principle and proportionality principle. The latter is stricter than the former and therefore harder than the former for an employer to prove that grounds of unfavorable treatment are reasonable. It seems that the principle of interpretation established on a previous case by the Supreme Court adopts the proportionality principle in a rather moderate sense. However it turned out that most courts including the Supreme Court in the current case have applied not this principle but the prohibition of arbitrary treatment principle to ascertaining reasonable grounds in their cases. Based on this finding it maintains that the nominal principle should be rigorously revived in order to make the AEDGFC more effective.

목차

Ⅰ. 서론
Ⅱ. 사실관계 및 노동위원회와 법원의 판단
Ⅲ. 비교대상 근로자의 선정과 ‘불리한 처우’ 여부의 판단
Ⅳ. 합리적인 이유의 판단
Ⅴ. 결론
참고문헌

키워드

기간제 근로자 비교대상 근로자 비정규직 불리한 처우 차별 합리적인 이유 자의금지 원칙 비례성 원칙 Fixed-term Employee Comparator Employee Non-standard Work Unfavorable Treatment Discrimination Reasonable Grounds Prohibition of Arbitrary Treatment Proportionality Principle

저자

• 심재진 [ Jaejin Shim | 서강대학교 법학전문대학원 부교수 ]

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