[Plaintiff, Appellee]
[Defendant, Appellant] Samik Construction Co., Ltd., Attorneys Kim Il-du and 1 other, Litigation Representatives
[Judgment Below]
Seoul High Court Decision 86Na2061, decided July 22, 1987
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal submitted by the Defendant's litigation representatives are examined.
1. In so-called "restructuring dismissal" (redundancy dismissal), whereby an enterprise dismisses employees due to management circumstances, the following requirements must be satisfied: first, there must exist an urgent managerial necessity such that the management of the enterprise would be jeopardized unless the dismissal is carried out; second, the employer must have made every effort to avoid dismissal, such as rationalizing management policy or work methods, prohibiting new hiring, and utilizing temporary leave and voluntary retirement; third, reasonable and fair standards for selecting the persons to be dismissed must be established and the persons subject to dismissal must be selected accordingly; and in addition, sincere consultation with the labor union or the employees must be conducted prior to the dismissal.
According to the reasoning of the judgment below, the court below, upon comprehensive consideration of the evidence cited therein, found the following facts: the Defendant company was established on February 16, 1971, and its principal business is construction both domestically and abroad; until the reorganization of the company's organizational structure on October 22, 1983, it employed approximately 380 regular employees across 17 departments, including the General Affairs Department; on the above date, the Defendant carried out a reduction of its organizational structure and personnel, merging the former Personnel Management Department into the General Affairs Department, merging the Housing Business Department and the Overseas Business Department into the Comprehensive Planning and Management Office, and dissolving the Technical Department, thereby reorganizing the structure and reducing it to a total of 14 departments; at the same time, among the employees of the merged, consolidated, or dissolved departments and the employees of the remaining departments, those employees deemed absolutely necessary for the handling of the affairs of the newly reorganized departments were preferentially assigned to the respective newly reorganized departments, while those employees for whom there was no appropriate post corresponding to their duties and rank, and whose work performance had been poor, were classified as subject to personnel reduction and dismissed on the same date; that the Plaintiff, who had served as manager of the Public Works Section of the Technical Department and had been mainly responsible for accounting-related duties such as cost calculation within the Technical Department, was, upon the dissolution of the Technical Department to which he belonged, included by the Defendant among those subject to the said personnel reduction on the ground that there was no appropriate post corresponding to the accounting duties he had been handling and his rank, and was dismissed together with 15 other employees; that although the Defendant company, citing financial difficulties, reduced its organizational structure (consolidating only three departments) and dismissed 15 employees including the Plaintiff, it nevertheless, within a mere two months by the end of that year, newly hired 14 employees as listed in the attached list to the judgment below, including, among high-ranking employees, one Kim Yeong-sam as Managing Director in charge of Finance (Accounting) and one Jeong Sun-deok as Deputy Director of the Planning and Coordination Office; that during the latter half of that year (from July 1, 1983 to December 31, 1983), a total of 65 employees were newly hired, and over the course of that entire year, a total of 101 employees were newly hired, and within the six months from the date of the Plaintiff's dismissal to April of the following year, 39 employees were newly hired; that the Defendant company's business performance showed net profits of 2,640,000,000 won from January 1, 1982 to December 31, 1982, net profits of 1,150,000,000 won from January 1, 1983 to December 31, 1983, and net profits of 6,500,000,000 won from January 1, 1985 to December 31, 1985, while showing a net loss of 8,450,000,000 won from January 1, 1984 to December 31, 1984; however, this loss resulted from the fact that depreciation expenses on heavy equipment and vehicles accumulated over several years in the overseas construction business sector, together with losses incurred in the overseas business sector due to claims, were calculated all at once as a net loss for that period; that the Plaintiff, after joining the Defendant company, had, as noted above, faithfully served for four years in the Accounting Department and the Technical Department, rising in rank to the position of manager; and that on the date of his dismissal, while the Plaintiff was away on a business trip ordered by the Defendant company, he was unilaterally dismissed by the company without any prior consultation or notice to him. Based on these findings, the court below determined that, at the time of the Plaintiff's dismissal, it is difficult to find that there existed an urgent managerial necessity requiring the Defendant to dismiss the Plaintiff due to the need for austerity management arising from the poor performance of the overseas construction business, and therefore concluded that the above dismissal could not be deemed to have justifiable cause as prescribed under Article 27(1) of the Labor Standards Act (근로기준법).
Upon examination of the evidence adopted and rejected by the court below as reflected in the record, the above findings of the court below are acceptable, and there is no violation of the rules of evidence or incompleteness of deliberation in the process of fact-finding. In light of the facts found by the court below, it is clear that the dismissal of the Plaintiff lacked the legitimacy required for a restructuring dismissal; therefore, the conclusion of the court below, having ruled to the same effect, is also justified, and there is no illegality in violation of the Constitution or statutes as argued in the grounds of appeal. Furthermore, the above determination of the court below does not appear to be contrary to the purport of the precedents cited in the grounds of appeal. Accordingly, the arguments on this point are all without merit.
2. The mere fact that an employee, after being dismissed, received dismissal allowance offered by the company cannot, by itself, be deemed to establish that the employee acknowledged the legitimacy of his own dismissal and acquiesced in the dismissal measure. The judgment below, having ruled to the same effect, is justified, and there is no error of misapprehension of legal principles as argued in the grounds of appeal; accordingly, the arguments on this point are also without merit.
3. Where an employer's dismissal of an employee is null and void or has been rescinded, the employment relationship is deemed to have validly continued during the intervening period, and the fact that the employee was unable to provide labor is attributable to the employer, who wrongfully carried out the dismissal; therefore, the employee may claim payment of the full amount of wages that he would have received had he continued to work.
The measure of the court below, having ordered the Defendant to pay the amount obtained by deducting the withheld tax amount from the sum of the Plaintiff's base salary and various allowances, in accordance with the above purport, is justified, and there is no illegality as argued in the grounds of appeal; accordingly, the arguments on this point are also without merit.
4. In conclusion, since the Defendant's appeal is without merit, it is hereby dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Kim Sang-won, Justice Lee Hoi-chang, Justice Bae Seok, Justice Kim Ju-han