고려대학교

초록/요약

This article focuses on the study of unfair labor practices formed by case law principles regarding “group discrimination based on performance evaluation.” It examines unfair labor practices in which individuals, due to being members of a specific labor union, claim to have been evaluated more poorly than non-members or members of other unions, leading to disadvantages such as lower wages, performance bonuses, or promotions, or facing termination or refusal of contract renewal. These unfair labor practices are addressed under §81 ① (1) disadvantageous treatment or (4) control/interference of the Trade Union and Labor Relations Adjustment Act. The unfair labor practices related to evaluation-based discrimination not only have the characteristics of involving evaluation, being collective in nature, and being confirmed through comparisons, but also include the feature that the intention of the employer's unfair labor practice must be inferred from the performance evaluation. The complexity and collective nature of such cases require considerable time and effort for dispute resolution, and tend to cause disputes to become prolonged. In particular, the fact that the employer exclusively owns and controls personnel data, such as performance evaluations, leads to issues of information asymmetry and an imbalance of evidence, which is an important factor to consider. Considering the unique characteristics and the issues arising from them, this paper presents interpretive and improvement measures related to the eligibility of filing for relief from unfair labor practices (such as the performance evaluation itself and the resulting disadvantages), the determination of the starting point for the period of relief application based on the nature of the act, criteria for recognizing and judging unfair labor practices, judgment methods, and the location and extent of the burden of proof. These measures are proposed based on a review of general legal principles, domestic and international case law, and relevant discussions. To address and resolve the issues arising from the employer's monopoly over evaluation data, the following measures are proposed: ① (Operational Improvement) The Labor Relations Commission, which is obligated to review(investigate and examine) relief applications, should actively utilize its legally guaranteed right to Request Document Submissions to promptly resolve disputed factual matters. ② (Legislative Improvement) If relying solely on the document submission request proves ineffective, it is necessary to consider the introduction of Document Submission Order System under the Civil Procedure Act as a legislative measure. ③ (Interpretation and Application Improvement) Flexible application of statistical comparison methods and the application of ‘De Facto Presumption’ should be pursued to require the employer, who monopolizes evidence such as performance evaluations in litigation, to provide rebuttal evidence, thereby alleviating the burden of proof on the parties involved. Efforts to incorporate these approaches into the fundamental legal principles used for judgment should also be made. Additionally, ④ From a practical standpoint, considering the complexity of the case, it may be beneficial to develop and provide materials, such as the job-related documents of the Japanese Labor Relations Commission(“Practical Operation of the ‘Mass Observation Method’ in Labor Relations Commissions”), to investigators and the members of the Labor Relations Commissions. Furthermore, it seems necessary to make efforts for improvement by utilizing statistical experts as consultants to provide assistance with statistical comparison methods and other aspects.