[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Defendant Co., Ltd. (Attorney-at-law for the litigation: KCL Law Firm, Attorneys Choi Jong-gil and 1 other)
[Judgment Below] Seoul High Court Decision 2006Na30305 rendered on June 22, 2007
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
We examine the grounds of appeal.
1. As to Ground of Appeal No. 1
Even where a collective agreement (단체협약) has ceased to be effective, the portions concerning wages, retirement allowances, working hours, and other individual working conditions become part of the content of the employment contracts of the employees who were subject to that collective agreement, and remain as part of the content of each individual employee's employment contract governing the employer and the employee, unless a new collective agreement or rules of employment (취업규칙) are concluded or drawn up to amend them, or the individual employee's consent is obtained (see Supreme Court Decision 98Da13747, rendered June 9, 2000). This same legal principle applies equally to the portions of a collective agreement concerning grounds for dismissal and dismissal procedures.
According to the above legal principle, even if, at the time of the Plaintiff's disciplinary dismissal, the collective agreement at issue in this case had already ceased to be effective due to the expiration of its term, the Defendant was nonetheless required to comply with the provisions of the collective agreement at issue regarding dismissal procedures, unless a new collective agreement or rules of employment were concluded or drawn up, or the Plaintiff's individual consent was obtained. Although there are some insufficient points in the lower court's reasoning on this matter, its conclusion is justified.
The judgment below does not contain any error, as alleged in the grounds of appeal, that misunderstood the legal principles concerning the effect of the collective agreement at issue in this case and thereby affected the outcome of the judgment.
2. As to Ground of Appeal No. 2
The court below, after comprehensively considering the evidence it adopted, found the following facts: Article 70, Paragraph 2 of the collective agreement at issue in this case provides that "the disciplinary committee must give the party concerned seven days to make a statement of explanation (소명)"; the notice of attendance sent by the Defendant to the Plaintiff on February 11, 2005, notifying him to attend the disciplinary committee meeting to be held on February 18, 2005, stated only "Reason for attendance: You are referred to our company's disciplinary committee for violation of Article 8(3) (misconduct of insincerity) of the Gangwon Regional Labor Relations Commission's arbitration award, and you are requested to attend as indicated below and make your statement of explanation"; and at the disciplinary committee meeting held on February 18, 2005, specific questions and answers were exchanged only with respect to some of the grounds for disciplinary action against the Plaintiff. Based on these findings, the court below determined that, since the notice of attendance received by the Plaintiff stated as the ground for discipline only "violation of Article 8(3) (misconduct of insincerity) of the Gangwon Regional Labor Relations Commission's arbitration award," and since questions and answers were exchanged at the disciplinary committee meeting only with respect to some of the disciplinary facts, it was difficult to recognize that the Plaintiff had been given an opportunity to make a statement of explanation regarding the grounds for discipline.
However, even where a collective agreement, such as Article 70, Paragraph 2 of the collective agreement at issue in this case, provides that the party concerned must be given an opportunity to make a statement of explanation regarding the grounds for discipline, it is sufficient that such opportunity be provided to the subject, and it is not necessarily required that the statement of explanation itself actually be made (see Supreme Court Decision 91Da30620, rendered September 28, 1993; Supreme Court Decision 94Da24763, rendered May 23, 1995, etc.).
According to the record, the following facts can be ascertained: around the time the disciplinary dismissal of the Plaintiff at issue in this case took place, disciplinary decisions were made against numerous taxi drivers employed by the Defendant for similar reasons; the Plaintiff himself had already been subjected to disciplinary action twice before for similar reasons prior to the disciplinary dismissal at issue in this case; witness ○○○ at the first instance trial testified that he showed the Plaintiff relevant materials and gave him an opportunity to explain before the disciplinary committee meeting at issue was held, and the Plaintiff did not conduct cross-examination or raise any rebuttal argument against this testimony; and the notice of attendance for the disciplinary committee meeting sent by the Defendant to the Plaintiff (Defendant's Exhibit No. 7-1) stated, "Before attending the disciplinary committee meeting, please review the materials concerning the grounds for discipline so that you may make a sufficient statement of explanation when you attend the committee meeting." Furthermore, as found by the court below, at the disciplinary committee meeting held against the Defendant [sic; Plaintiff] on February 18, 2005, specific questions and answers were in fact exchanged between the disciplinary committee members and the Plaintiff regarding some of the disciplinary charges.
Examining the matter in light of the above circumstances and the legal principle set forth above, it must be deemed that the Plaintiff was provided with the opportunity to make a statement of explanation as prescribed under Article 70, Paragraph 2 of the collective agreement at issue in this case, and it is therefore difficult to regard the Defendant as having violated Article 70, Paragraph 2 of the collective agreement at issue in this case.
Nevertheless, the court below made a different determination for the reasons set forth above, and such judgment below contains an error that misunderstood the meaning of Article 70, Paragraph 2 of the collective agreement at issue in this case or violated the rules of evidence, thereby affecting the outcome of the judgment.
The grounds of appeal pointing out this error are well-founded.
3. As to Ground of Appeal No. 3
The court below, after comprehensively considering the evidence it adopted, found that the Defendant, in the course of the disciplinary proceedings against the Plaintiff, sent a notice on February 11, 2005, requesting that an employee-side disciplinary committee member be selected and notified to the Defendant for the disciplinary committee meeting to be held on February 18, 2005, and sent another notice on February 19, 2005, requesting that an employee-side disciplinary committee member be selected and notified to the Defendant for the disciplinary committee meeting to be held on February 25, 2005. However, the court below determined that, since there was no evidence to prove that each of the above notices had reached the Defendant's labor union, it was difficult to regard the Defendant as having complied with the procedure prescribed in the collective agreement at issue in this case for the selection of an employee-side disciplinary committee member.
However, according to the evidence adopted by the court below as stated in its reasoning, all of the notices requesting that an employee-side disciplinary committee member be selected and notified to the Defendant for the disciplinary committee meeting concerning the Plaintiff were addressed to "the Chapter Chairperson of (name omitted) Transportation, Democratic Taxi [Union]" as the recipient, and it can be ascertained that the Defendant sent these by registered mail, and that the postal receipt obtained upon delivery listed the recipient as "Union Chairperson." If so, absent special circumstances, it is reasonable to view the above notices as having been sent to "the Chapter Chairperson of (name omitted) Transportation, Democratic Taxi [Union]," and since mail sent by registered delivery must be deemed to have been delivered to the recipient around that time unless special circumstances exist, such as the mail being returned (see Supreme Court Decision 79Da1498, rendered January 15, 1980; Supreme Court Decision 91Nu3819, rendered March 27, 1992; Supreme Court Decision 2000Da20052, rendered October 27, 2000, etc.), it should be recognized that, absent special circumstances such as the mail being returned, the above notices were delivered to "the Chapter Chairperson of (name omitted) Transportation, Democratic Taxi [Union]."
Nevertheless, the court below, contrary to the foregoing, determined that there was no evidence to prove that the above notices had reached the Defendant's labor union, and thus that it was difficult to regard the Defendant as having complied with the procedure prescribed in the collective agreement at issue in this case for the selection of an employee-side disciplinary committee member. Such judgment below contains an error that misunderstood the legal principles concerning the arrival of a manifestation of intent or violated the rules of evidence, thereby affecting the outcome of the judgment.
The grounds of appeal pointing out this error are also well-founded.
4. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Ko Hyun-chul (Presiding Justice), Yang Sung-tae, Kim Ji-hyung (Justice in Charge), Jeon Soo-an