영업양도 전에 해고된 근로자의 근로관계 승계에 관한 판례 법리 검토 ― 대법원 2020. 11. 5. 선고 2018두54705 판결 ―

초록

Regarding the transfer of labor relations following the transfer of business, the precedent takes the position of succession in principle. If the business is comprehensively transferred, the labor relationship between the transferor and the employee is, in principle, comprehensively succeeded to the transferee, unless there is a special agreement to the contrary. Since it is no different from dismissal, it is effective only when there is a legitimate reason under Article 23, Paragraph 1 of the Labor Standards Act. Even if only part of the business is transferred, it is deemed to be transferred to the transferee while maintaining the same employment relationship. Employees have the right to terminate the employment contract or to refuse succession. What is the legal relationship of the dismissed worker prior to business transfer? A special agreement to exclude workers who have been unfairly dismissed prior to the transfer of the entire business from succession is invalid. It is not necessary that the unfair dismissal be established before the transfer of business takes place. The employment relationship of the dismissed worker shall be succeeded to the transferee. However, in some cases where only part of the business was transferred, the Supreme Court caused controversy by judging that the employment relationship with the worker who was dismissed prior to the transfer of part of the business was not succeeded. In terms of specific validity, there is room for accepting the conclusions of these cases, but there is a problem that seems to contradict the theory of succession in principle in terms of jurisprudence. These judgments need to be critically reviewed. The case subject to comment is a case in which workers who were excluded from succession or dismissed according to a special agreement in the process of two business transfers fought for unfair dismissal. The Supreme Court ruled that if a worker is dismissed without justifiable reasons before the business transfer date, the labor relationship between the transferor and the employee is still valid, and the transferee in principle succeeds to the labor relationship with the employee. With this, the Supreme Court reaffirmed that it was in the position of succession in principle in the transfer of all business. This contrasts with the position shown by precedents regarding the succession of the employment relationship of dismissed workers in the case of the transfer of part of the business. Let"s try to find out how to understand the jurisprudence of precedents that seem to be divided by case type and what are the ways to improve it.

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