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LABOR LAW
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Burden of proof as to context
An employer is bound by the reasons shown in the termination
notice. Thus, in case of a re-employment lawsuit, an employer
may not introduce or rely on reasons other than those shown on the
termination notice.
In order to prove the validity of the termination, the employer must
first show the managerial decision. Moreover, he or she must prove
that the managerial decision is consistent and is not gratuitous
within the scope of
bona fide principle
as stipulated under Article 2
of the Civil Law.
It must also be proven that the termination decision is the last
remedy that can be applied. In other words, if there is another way to
reach the business targets other than by terminating labor contracts,
the allegation on the validity and justness of the termination is not
taken into consideration by the courts. For example, if the employee
whose labor contract is being terminated can be placed in another
department rather than being terminated, then the termination
would not be considered valid.
As the matter of fact, both the local courts and the Court of Cassation
seek an on-site examination at the work place and an expert report
regarding the work tasks and definitions of all other employees,
business operation charts, personnel files of the employees, and
social security declarations in addition to the managerial decision
in order to find out if the termination was inevitable as the last
possible remedy or not.
Conclusion
As acknowledged by everyone, re-employment lawsuits are very
common and labor legislation aims to protect employees. In this respect,
a significant burden of proof is laid upon employers. Therefore, diligent
employers must take into consideration the criteria mentioned above
regarding the termination of labor contracts due to managerial decisions in
order to avoid any future conflicts.