對於績效考核之司法審查與解僱最後手段性原則之適用－－評臺灣高等法院九十三年度勞上字第五十號民事判決

The Application of Judicial Review of Performance Appraisal and Ultima Ratio Grundsatz: Comments on the (93) Lao-Shang No. 1 Decision Rendered by the Taiwan High Court

績效考核通常係由勞工之主管所為，不過由於評定標準較為抽象且進行評定時難免有一定之裁量餘地，因而在實務上迭生爭議。是以，本文乃擬先整理我國有關績效考核爭議之判決及學說見解以了解目前的問題狀況，接著再探討在日本法上對於相關問題之處理方式，最後再以此為基礎來檢視本判決之妥當性，期盼能釐清相關的問題並提供可能的解決途徑。

Performance appraisal is the method the employer evaluates employees job performance by various aspects such as work competencies, attitude and productivities. However, the criteria of performance appraisal tend to be abstract. Besides, the evaluator has certain authorities when conducting performance appraisal. The above two reasons could lead to the discrepancy between employer and employee. To solve the above problems, we are going to organize the current theories related to the controversy over the evaluation of performance appraisal and refer to solutions based on Japanese Labor Law, then examine the rationality of this judgment on account of the above conclusion. Hope this could get to the bottom of this issue and provide a possible solution.