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grounds is determined according to Article 18 of Labor Code. Justifiable
grounds may arise from the sufficiency of the employee or the acts of
the employee or the necessities of the management. The Code does not
define justifiable grounds, and thus leaves to the courts the determination
of justifiable grounds for each occasion. Loss of employee’s ability to
perform the work specified in the employment contract is an example of
justifiable grounds arising from the sufficiency of the employee. Fighting in
the workplace with another employee is an example of justifiable grounds
arising from an act of the employee. There are other examples. However,
in order to evaluate the grounds arising from the sufficiency or the act
of the employee as a justifiable reason, the employment relationship will
face serious problems, and it will not be reasonable for the employer to
continue the employment relationship. A justifiable ground arising from
necessities of the management is not based on an employee, but it is based
on the employer. The management decisions must not constitute an abuse
of rights. If by applying management decisions, there is no longer an
opportunity for the employee to work or there is excess of personnel, then
it is accepted that there is a justifiable ground arising from the necessities
of the management. At the second stage, it is determined whether the
proposed change in working conditions conforms with the code, the
collective labor contract, and the principle of proportionality and whether
it is fair to expect the employee to accept the proposed changes.
An employee who is within the scope of employment security
legislation (an employee working with an indefinite term of contract for
at least 6 months at a workplace that employs more than 30 employees)
can file a lawsuit for reemployment by alleging that the termination was
not based on a justifiable ground. The employer must prove that the
termination is based on a justifiable ground. As stated above, the existence
of justifiable grounds will be determined in two stages. If the employer
cannot prove that the termination is based on a justifiable ground, then the
termination will be deemed ineffective and the employer will be obliged to
reemploy the employee. If the employer does not reemploy the employee,
then the employee will be entitled to an indemnity, severance, and notice
pay provided that the relevant requirements are met. Whether the employee
is reemployed or not, he or she will be entitled to wages and other rights
for up to four months.
According to the doctrine, Article 22 of Labor Code will also apply to