[Plaintiff, Appellant] Plaintiff (Attorney-at-law Kang Ki-tak of Sicheon Law Firm, counsel for the plaintiff)
[Defendant, Appellee] Cheorwon Call Taxi Co., Ltd. (Attorneys Park Mun-woo and 1 other, counsel for the defendant)
[Judgment Below] Seoul High Court Decision 2005Na100627 rendered on June 23, 2006
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. As to the grounds of appeal regarding the disciplinary procedure
A. Judgment of the court below
With respect to the Plaintiff's argument that he had not been notified in advance of the grounds for disciplinary action or given an opportunity to explain his position thereon, and that there was also a material defect in the composition of the disciplinary committee, the court below rejected this argument, holding as follows: not only did the Defendant notify the Plaintiff in advance of the grounds for the dismissal in this case and give him an opportunity to explain, but also the Defendant's rules of employment (취업규칙) did not provide for any procedure regarding prior notification of disciplinary grounds or the granting of an opportunity to make statements; in such a case, even if the disciplinary action was taken without going through such a procedure, this would not affect the validity of the disciplinary action. Furthermore, since the Defendant's rules of employment merely provided that "the disciplinary committee shall be composed of two members each from labor and management" with respect to the composition of the disciplinary committee, without providing any provisions regarding the qualifications or selection procedure of disciplinary committee members, the qualifications or selection procedure of disciplinary committee members could not be separately challenged. Therefore, since the Defendant composed the disciplinary committee in the prescribed form, with two disciplinary committee members each from the labor side and the management side as provided in the rules of employment, and then resolved on the dismissal in this case, it would be difficult to find any procedural defect in the composition merely from the fact that the two labor-side disciplinary committee members were appointed by the Defendant's representative director.
B. Judgment of this Court
First, examining the evidence adopted by the court below in light of the record, the court below's determination that the Defendant notified the Plaintiff in advance of the grounds for the dismissal in this case and gave him an opportunity to explain is justified and acceptable, and there is no illegality such as a violation of the rules of evidence or misapprehension of facts due to incomplete deliberation.
However, it is difficult to accept as it stands the court below's determination that there was no procedural defect in violation of the Defendant's rules of employment regarding the composition of the disciplinary committee, in composing the disciplinary committee with two members each from the labor side and the management side.
According to the record, the Defendant's rules of employment provide that "the disciplinary committee shall be composed of two members each from labor and management," and it can be seen that the Defendant's representative director appointed Nonparty 2, who is the actual owner of the Defendant and the representative director of Nonparty 1 Co., Ltd., whose place of business is identical to that of the Defendant, and Nonparty 3, his spouse, as the management-side disciplinary committee members, and Nonparty 4 and Nonparty 5, who are the Defendant's employees, as the labor-side disciplinary committee members. The provisions on disciplinary procedures in collective agreements, rules of employment, or disciplinary regulations based thereon are of important significance in that they are intended to ensure the fair exercise of disciplinary authority and to promote the rational operation of the disciplinary system (see, e.g., Supreme Court Decision 90Da8077 rendered on July 9, 1991). Furthermore, if the rules of employment, etc. provide for the composition of the disciplinary committee with an equal number of members from labor and management, this is intended to secure procedural fairness by guaranteeing employees' right to participate in the disciplinary committee through the appointment of disciplinary committee members from among the employees, as well as to check any abuse of disciplinary authority by management. Therefore, although the Defendant's rules of employment do not directly provide for the qualifications and selection procedure of disciplinary committee members, absent special circumstances such as the labor-side disciplinary committee members having previously represented the employees or spoken on behalf of the employees' opinions, it cannot be interpreted that the labor-side disciplinary committee members may be arbitrarily appointed without any process of reflecting the employees' opinions.
Therefore, the court below should have further examined whether there were circumstances indicating that Nonparty 4 and Nonparty 5, who were appointed as labor-side disciplinary committee members, had previously represented the employees or spoken on behalf of the employees' opinions, and whether the Defendant's representative director had gone through a procedure of reflecting the employees' opinions in appointing the labor-side disciplinary committee members (according to the record, the employees of the Defendant and Nonparty 1 Co., Ltd. held a founding general meeting of a labor union and notified the Defendant of the establishment of the labor union prior to the dismissal in this case, and it also appears that most of the employees had joined the Woosin Mutual Aid Association (우신상조회) even before that, with the Woosin Mutual Aid Association having conducted wage negotiations, etc. with the company), and should have determined whether there was a procedural defect in the composition of the disciplinary committee in this case based thereon. Nevertheless, the court below determined that the qualifications or selection procedure of disciplinary committee members could not be challenged, and that it was difficult to find any procedural defect in the composition of the disciplinary committee merely from the fact that the two labor-side disciplinary committee members were appointed by the Defendant's representative director. The judgment below thus fails to conduct the necessary deliberation and errs in its understanding of the legal principles regarding the interpretation of the disciplinary procedure provisions under the rules of employment, and it is clear that this error affected the outcome of the judgment.
2. As to the grounds of appeal regarding the grounds for disciplinary action
A. Judgment of the court below
With respect to the Plaintiff's argument that the failure to pay the transport revenue does not constitute grounds for dismissal, and that even if it does, the dismissal in this case is excessively severe in relation to the grounds therefor and thus exceeds the bounds of disciplinary discretion, the court below rejected this argument, holding as follows: the Plaintiff's act of operating the taxi without paying the fixed quota (사납금, "the quota in this case") in this case and then paying it all at once on April 10, 2003 constitutes either an act of misappropriating the transport revenue or a failure to pay the transport revenue for three days or more, which falls under the grounds for dismissal set forth in Article 36, Item 6 of the Defendant's rules of employment. The court below considered the following circumstances together: (1) although the Plaintiff claims that the reason for the nonpayment of the quota in this case was the difficulty in compensating for the damage caused by the traffic accident he caused on March 15, 2003, the Plaintiff began to fail to pay the quota in this case from around March 13, 2003, which was before the traffic accident occurred, and this was at a point only about three months after the Plaintiff began working as the Defendant's fixed driver; (2) the Defendant not only handled the personal injury and property damage arising from the traffic accident, but also, since the traffic accident occurred due to the Plaintiff's gross negligence, it is difficult to view it as an unjust shifting of responsibility by the Defendant to impose the resulting damage on the employee; (3) although the Plaintiff eventually paid the quota in this case in full, he failed to pay it despite receiving several demands from the Defendant and even notice of the disciplinary committee, and only paid it on the very day the disciplinary committee was held, so it is difficult to expect, from the mere fact of full payment, that the same nonpayment will not be repeated in the future; and (4) there is no clear evidence to recognize that the Plaintiff's unpaid amount was not large or was at an ordinary level, and in light of the fact that Nonparty 6, whom the Plaintiff cites for the sake of equity, was also disciplinarily dismissed by the Defendant, it is difficult to view the dismissal in this case as excessively severe in relation to the grounds therefor and thus lacking in equity. In addition, the court below considered that, since a company operating a taxi transport business ordinarily covers its operating funds with the transport revenue that its drivers pay to the company from operating taxis on a daily basis, and in such a business structure, it is a basic duty of drivers as taxi company drivers to faithfully and regularly pay the transport revenue to the company as stipulated in the wage agreement, etc., a driver's failure to properly perform the duty to pay the transport revenue as stipulated in the wage agreement, etc., absent special circumstances, constitutes a failure to perform the employee's essential and fundamental duty under the employment contract, which not only amounts to a breach of obligation but should generally be considered grounds for dismissal. Taking these circumstances together, the court below found it reasonable to conclude that the employment relationship between the Defendant and the Plaintiff had reached a point where, in light of social norms, its continuation could no longer be expected due to causes attributable to the Plaintiff, and thus rejected the Plaintiff's above argument, finding that the dismissal in this case could not be viewed as exceeding or abusing the bounds of disciplinary discretion.
B. Judgment of this Court
However, the court below's determination that the dismissal in this case cannot be viewed as exceeding or abusing the bounds of disciplinary discretion is difficult to accept for the following reasons.
A dismissal is recognized as justified only where there exists a cause attributable to the employee to the extent that, in light of social norms, the employment relationship can no longer be continued, and whether the employment relationship with the employee concerned has reached such a point that it can no longer be continued in light of social norms must be determined by comprehensively examining various circumstances, including the purpose and nature of the employer's business, the conditions of the workplace, the employee's position and the content of the duties in charge, the motive and circumstances of the misconduct, the risk of disruption to the order of the enterprise arising therefrom and its impact on corporate order, and the employee's past work conduct (see, e.g., Supreme Court Decision 2001Du10455 rendered on May 28, 2002).
According to the record, however, there is no evidence to recognize that the Plaintiff began to be in arrears on the quota in this case from March 13, 2003, before the traffic accident of March 15, 2003; rather, comparing the amount in arrears with the number of days in arrears, it is highly likely that the arrears began after the above traffic accident. Furthermore, according to the Defendant company's daily deposit ledger details for the year 2002, it is confirmed that the Plaintiff paid the quota to the Defendant company from around June 2002, and even considering the three-month probationary period, it appears that the Plaintiff worked as a fixed driver from around September 2002. In addition, the Defendant sent demand letters for faithful payment to those in arrears of 1,000,000 won or more of the quota, and the payment due date stated in the demand letter was April 10, 2003, while the Plaintiff's unpaid quota did not reach 1,000,000 won, such that he did not receive such a demand letter from the Defendant, and the Plaintiff paid all of the unpaid quota in this case by April 10, 2003, the payment due date stated in the demand letter. It can also be seen that drivers employed by the Defendant customarily did not pay the quota on a daily basis but paid it in a lump sum covering 2-3 days' worth, and there were even cases of lump-sum payment covering a week's worth or even 1,000,000 won or more, and the Defendant had no prior record of disciplining employees on this ground, and had paid the diligence allowance so long as the quota for the entire month was paid in full by the end of the month, regardless of whether it was paid daily. Considering these facts together with the circumstance that the Plaintiff's arrears on the quota in this case were due to the difficulty in repaying a daily-interest private loan (일수사채) borrowed to compensate for the damage from the traffic accident of March 15, 2003, and the circumstance that the Plaintiff paid the quota in this case in full immediately before the disciplinary committee was convened, it cannot be concluded that the employment relationship between the Defendant and the Plaintiff had reached a point where, in light of social norms, its continuation could no longer be expected due to causes attributable to the Plaintiff. Therefore, the dismissal in this case can be viewed as excessively harsh and as exceeding the bounds of disciplinary discretion.
Nevertheless, the court below determined that the disciplinary measure of dismissal in this case was appropriate and could not be viewed as exceeding or abusing the bounds of disciplinary discretion. The judgment below thus errs in misapprehending the facts in violation of the rules of evidence, or in misapprehending the legal principles regarding the exceeding of disciplinary discretion, and it is clear that this error affected the outcome of the judgment.
3. Conclusion
Therefore, without determining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination, in accordance with the unanimous opinion of the participating Justices, as set forth in the Order.
Justices Kim Ji-hyung (Presiding Justice), Ko Hyun-chul (Justice in charge), Yang Sung-tae, Jeon Su-an