[Plaintiff, Appellant] Jang Mi-suk, Litigation Representative Attorney Cho Yeong-rae and 2 others
[Defendant, Appellee] Korea Tourism Organization, Litigation Representative Attorney Lee Seok-jo
[Original Judgment]
Seoul High Court Judgment 86Na907, rendered October 16, 1986
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
As to Ground 1:
A reassignment or transfer of an employee may constitute a disposition disadvantageous to the employee in that it brings about a change in the type, content, or place of the labor that the employee is required to provide; however, this matter belongs in principle to the authority of the employer (the holder of personnel authority), and considerable discretion must be recognized within the scope necessary for business operations. Such a disposition cannot be deemed void as a matter of course unless there exist special circumstances such as its violating Article 27, Paragraph 1 or Article 105 of the Labor Standards Act (근로기준법), or constituting an abuse of rights.
According to the reasoning of the judgment below, the court below found the following facts: the Plaintiff was employed on August 11, 1980 as a commissioned salesperson at the duty-free shop of the Defendant's Gimpo Business Office and worked there; on December 4, 1984, the Plaintiff filed a petition with the Seoul Southern District Office of the Ministry of Labor against the Defendant, demanding payment of various allowances and improvement of working conditions for the Defendant's commissioned employees; the Seoul Southern District Office, upon investigating the truth of the matter raised in the petition, concluded that the Defendant had failed to pay the Plaintiff a total of 705,263 won in annual leave allowance, monthly leave allowance, and holiday work allowance, and instructed the Defendant to pay this amount; the Defendant, in compliance with this instruction, attempted to pay the Plaintiff the unpaid allowances, but as the Plaintiff refused to accept payment, the Defendant deposited the amount in escrow (변제공탁) on January 8, 1985, designating the Plaintiff as the person entitled to receive the deposited funds. However, the court below found that there was no evidence that the Defendant's reassignment of the Plaintiff on December 31, 1984 to a clerical assistant position in the General Affairs Section of the Defendant's Head Office Business Department (hereinafter referred to as the "first reassignment"), the subsequent reassignment on January 25, 1985 to a salesperson position at the Defendant's Busan Business Office (hereinafter referred to as the "second reassignment"), and the dismissal on March 20 of the same year, were carried out as a kind of retaliation or punishment against the Plaintiff in connection with the aforementioned petition or the filing of this lawsuit. Rather, the court below found, to the contrary, the following facts as set forth in its reasoning: that, as of January 1, 1985, the Defendant abolished the commissioned employee system for salespersons and others working at the Defendant's business offices, decided to appoint all of them as regular employees (employed staff, 고용원), and, taking that opportunity, implemented a single round of rotational reassignments; that pursuant to this, the Plaintiff was appointed as a regular employee (employed staff) at pay grade 10 of the Defendant and simultaneously reassigned (the first reassignment) to a clerical assistant position in the General Affairs Section of the Defendant's Head Office Business Department; that subsequently, upon receiving a request from the head of the Busan Business Office for additional salespersons, and having obtained the Plaintiff's consent on the condition that the Defendant would provide, at its own expense, lodging at the place of work, the Defendant reassigned the Plaintiff (the second reassignment) to a salesperson position at the Defendant's Busan Business Office; that thereafter, the Plaintiff refused to comply with the said reassignment disposition, refused to report for duty and did not work, asserting that the reassignment had been carried out as a means of punishing or retaliating against her; and that the Defendant, through the lawful procedures set forth in the judgment below, lawfully dismissed the Plaintiff on the ground that she had continued to be absent from work without leave on several occasions. In light of the entire record, the fact-finding of the court below as set out above may be upheld, and it cannot be said that there was any insufficiency of deliberation or violation of the rules of evidence as argued in the grounds of appeal.
Furthermore, if the facts are as found by the court below, then even if the first reassignment disposition was carried out without the Plaintiff's consent, it cannot be deemed void as a matter of course; and since the second reassignment disposition was one to which the Plaintiff had given prior consent, even if it were disadvantageous to the Plaintiff, it likewise cannot be deemed void as a matter of course. Moreover, the disposition dismissing the Plaintiff, who had continued to be absent without leave, in accordance with the provisions set forth in the Defendant's rules of employment and collective bargaining agreement, must be regarded as lawful. The judgment of the court below to this effect is justified.
The argument in this ground of appeal ultimately amounts either to a challenge against the fact-finding, which falls within the exclusive authority of the court below, or to an assertion, premised on facts not found by the court below, that the judgment below misapprehended the legal principles concerning Article 27 of the Labor Standards Act. This ground of appeal is therefore without merit.
As to Ground 2:
Upon examining the reasoning of the judgment below in light of the entire record, the fact-finding of the court below regarding the portion concerning the Plaintiff's claims for payment of various allowances during her period of employment may be upheld. The court below's statement that the Defendant had set the remuneration of commissioned salespersons to match the level of remuneration of the Defendant's regular Grade 5 general service employees, and paid it under the name of "base salary," is to be understood as meaning that the remuneration was set in accordance with that level, not that the specific amount of remuneration was necessarily set to match the remuneration amount (the sum of basic pay and various allowances) of the regular Grade 5 general service employees. (Otherwise, if the remuneration received by commissioned salespersons consisted solely of base salary as the basic pay, as argued in the grounds of appeal, it would end up far exceeding the remuneration amount of regular Grade 5 general service employees.) Given that the facts found by the court below are as described above, the documentary evidence referred to in the grounds of appeal cannot be said to impede the fact-finding of the court below. Accordingly, it cannot be said that the court below's selection and weighing of evidence and its fact-finding on this point violated the rules of evidence, or that the court below improperly narrowed the scope of ordinary wages. This ground of appeal is therefore also without merit.
As to Ground 3:
Under Article 59 of the Labor Standards Act (근로기준법), an employer is obligated to grant one day of menstrual leave per month where a female employee requests it; accordingly, where no such request has been made, it cannot be deemed unlawful for the employer not to have granted such leave, and in such a case, the employer is not necessarily or automatically obligated to pay additional wages (allowance) therefor.
According to the facts found by the court below, while the Defendant's rules of employment provide for one day of paid menstrual leave per month upon a female employee's request, there is no evidence that the Plaintiff ever requested menstrual leave from the Defendant. This being so, the rejection of the Plaintiff's claim for wages for menstrual leave days must be deemed justified, and the precedent of this Court cited in the grounds of appeal (Supreme Court Judgment 71Da1713, rendered January 17, 1972) is not applicable to the case of menstrual leave at issue here.
Furthermore, the argument premised on the assertion that the Plaintiff's failure to request menstrual leave was attributable to a cause imputable to the Defendant is premised on facts not found by the court below, and therefore cannot be accepted. This ground of appeal is therefore also without merit.
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Ahn U-man, Justice Kim Deok-ju, Justice Bae Man-un