[Plaintiff, Respondent] Plaintiff (Counsel: Myungin Law Firm, Attorney Yoon Jong-hyun and 5 others)
[Defendant, Appellant] Woori Bank Co., Ltd. (formerly Hanvit Bank Co., Ltd.) (Counsel: Kwangjang Law Firm, Attorney Jeong Eun-hwan and 1 other)
[Court Below] Seoul High Court Decision 2000Na15908 rendered on April 11, 2001
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. The facts lawfully established by the court below are as follows.
A. Korea Commercial Bank Co., Ltd. (hereinafter "Commercial Bank"), facing a crisis of survival due to accumulated deficits, entered into a merger agreement with Hanil Bank Co., Ltd. on August 24, 1998 for the purpose of improving its management, received an equity investment (so-called public fund support) of KRW 3,264,200,000,000 from the Korea Deposit Insurance Corporation on September 30, 1998, pursuant to Article 38-2, Paragraph 1 of the former Depositor Protection Act (예금자보호법, before amendment by Act No. 6323 of December 30, 2000), and completed merger registration on January 6, 1999, becoming the Defendant Bank.
B. On January 22, 1999, the Defendant Bank entered into an implementation agreement for a detailed implementation plan for management normalization with the Financial Supervisory Commission and the Korea Deposit Insurance Corporation, and the mandatory implementation items under said agreement included, as part of a plan to strengthen short-term profitability, efforts to reduce employees at Grade 3 or above to the maximum extent possible and to consolidate overlapping or low-productivity branches and subsidiaries.
C. From 1998 through the first half of 1999, the Defendant Bank closed 260 branches, and also consolidated its head office organization, merging Commercial Bank's 37 departments and Hanil Bank's 30 departments, closing 33 departments and leaving only 34 departments.
D. On February 12, 1999, the Defendant Bank decided, for the purpose of implementing the above management normalization plan and restructuring following the consolidation of branches and organizations, to reduce a total of 356 employees, comprising 50% of Grade 1 employees (73 persons), 40% of Grade 2 employees (201 persons), and 10% of Grade 3 employees (82 persons); prepared a list of employees subject to reduction according to selection criteria based on age, length of service, and work performance; notified the labor union of the number of employees to be reduced and the selection criteria therefor; and, on February 20 of the same year, announced the implementation of voluntary retirement, deciding to pay employees who voluntarily retired a special retirement allowance equivalent to 8 months of average monthly wages.
E. The Plaintiff, a Grade 3 employee born on December 5, 1946, who joined Commercial Bank on July 19, 1965 and had 33 years of service, fell within the age and length-of-service criteria under the selection standards for reduction and was selected as a person subject to reduction.
F. After continuing consultations with the labor union, the Defendant Bank agreed with the labor union on March 4, 1999 to maintain the selection criteria for employees subject to reduction as they were, but to reduce the total number to 282 persons, comprising 50% of Grade 1 employees (73 persons), 32% of Grade 2 employees (161 persons), and 6% of Grade 3 employees (48 persons).
Accordingly, among the employees initially selected as subject to reduction, the Defendant Bank excluded from the reduction those younger employees and those employees with lower work performance who had lower salary steps, but the Plaintiff was not among those relieved from selection.
G. Among the employees at Grade 3 or above, the number of persons who applied for voluntary retirement was: all 73 target persons for Grade 1; all 161 target persons for Grade 2; and, for Grade 3, 47 of the 48 target persons excluding the Plaintiff — thus 281 out of the 282 target persons. Meanwhile, 1 Grade 1 employee and 4 Grade 3 employees who had not originally been subject to voluntary retirement additionally applied for voluntary retirement, bringing the total number of voluntary retirement applicants to 286, and the Defendant Bank allowed all 286 persons to voluntarily retire effective February 27, 1999.
H. The Plaintiff was working as the manager of the Individual Customer Business Branch at the Iksan Central Branch. After notifying the Plaintiff that he had been selected as a person subject to reduction, the Defendant Bank, on the ground that it was difficult for him to continue performing his duties in his current position, issued a personnel order transferring him to the position of Investigator in the Personnel Department effective February 27, 1999; on March 27, 1999, gave the Plaintiff advance notice of dismissal and simultaneously issued an order of leave of absence applying Article 4, Paragraph 5, Chapter 6 of the Personnel Management Guidelines ("when a leave of absence is deemed unavoidable due to other circumstances of the employee or the bank"); and then, following deliberation and resolution by the Personnel Consultation Committee, dismissed the Plaintiff by way of redundancy (economic dismissal) effective April 30, 1999.
2. Regarding the validity of the redundancy dismissal in this case
A. Under Article 31, Paragraphs 1 through 3 of the Labor Standards Act (근로기준법), where an employer intends to dismiss an employee for managerial reasons, there must be an urgent managerial necessity, the employer must make every effort to avoid dismissal, the persons subject to dismissal must be selected according to reasonable and fair criteria, and the employer must notify the labor union organized by a majority of the employees, or the representative of the employees, of the methods for avoiding dismissal and the criteria for dismissal, etc., no later than 60 days before the date of dismissal, and must consult in good faith. Here, "urgent managerial necessity" is not limited to cases of avoiding the bankruptcy of the enterprise, but should be construed to include cases where a reduction in personnel is objectively recognized as reasonable as a means of preemptively responding to a crisis that may arise in the future; and since the specific content of each of the above requirements is not fixed or static but is determined flexibly in relation to the degree of fulfillment of the other requirements in a given case, whether a particular dismissal for managerial reasons is valid, having satisfied all of the above requirements, must be determined by comprehensively considering the individual circumstances constituting each requirement.
B. The court below held that the dismissal of the Plaintiff was invalid on the ground that it did not satisfy the requirements for a redundancy dismissal, making determinations item by item as follows; we examine the propriety of these determinations from the standpoint of comprehensive consideration as set out above.
(1) Regarding urgent managerial necessity
The court below, having found that the Defendant Bank recorded a net profit of KRW 340.6 billion in the first quarter of 1999, and, in the first half of 1999, a net profit of KRW 558.5 billion, an operating profit of KRW 1,099.2 billion, and a reserve coverage ratio of 115%, determined that, in light of the fact that the management condition had improved in the course of the series of restructuring measures, it could not be concluded that there was an urgent managerial necessity for redundancy dismissal at the time the Defendant Bank dismissed the Plaintiff.
However, in light of the facts that Commercial Bank, prior to the merger, faced a crisis of survival due to accumulated deficits and received public fund support of KRW 3,264,200,000,000 in the form of an equity investment from the Korea Deposit Insurance Corporation on September 30, 1998; that the Defendant Bank, after the merger, recorded a deficit of KRW 1,987,200,000,000 in 1999 (Evidence Eul No. 27); and that thereafter the Defendant Bank additionally received public fund support of KRW 2,764,400,000,000 in the form of an equity investment on December 30, 2000, and KRW 1,877,200,000,000 in the form of a contribution on September 29, 2001, from the Korea Deposit Insurance Corporation, it must be viewed that the temporary surplus recorded by the Defendant Bank in the first half of 1999 was due to a provisional settlement of accounts that did not properly reflect factors of insolvency, and this data cannot be taken to show that the Defendant Bank's management condition had improved to the point where restructuring was no longer necessary. Rather, in light of the fact that the Defendant Bank's management crisis continued as described above, and considering the excess-personnel phenomenon resulting from the merger and the consolidation of departments carried out to overcome that crisis, it must be said that there was a high degree of urgent managerial necessity for the Defendant Bank to carry out the redundancy dismissal of the Plaintiff at the time it did so. The determination of the court below, made from a different view, contains an error of law in misapprehending the legal principles concerning urgent managerial necessity, or in misapprehending the facts in violation of the rules of evidence.
(2) Regarding efforts to avoid dismissal
The court below determined that, in light of the fact that when the Plaintiff did not accede to the voluntary retirement offer, the Defendant Bank, instead of making efforts to maintain employment such as demotion/reassignment or transfer to another position, issued a personnel order transferring him to the position of Investigator in the Personnel Department — effectively as a means of forcing his retirement — thereby removing him from his current position, and then issued a leave of absence order before dismissing him, it could not be said that the Defendant Bank had exhausted its efforts to avoid dismissal merely by having implemented voluntary retirement and having arranged re-employment for some of the dismissed employees.
The method and degree of efforts to avoid dismissal that an employer must exhaust before implementing a redundancy dismissal are not fixed or static, but vary depending on the degree of the management crisis faced by the particular employer, the managerial reasons requiring the redundancy dismissal, the content and scale of the business, the personnel status by rank, etc.; and where the employer has consulted in good faith with the labor union or employee representative regarding methods of avoiding dismissal and has reached an agreement on the implementation of the redundancy dismissal, this circumstance must also be taken into account in determining whether efforts to avoid dismissal were made.
Examining the case at hand: Commercial Bank, prior to the merger, while facing a crisis of survival, made efforts such as submitting a management improvement plan to the Financial Supervisory Commission and the Korea Deposit Insurance Corporation and successfully carrying out the merger, thereby securing an opportunity for recovery through receiving public fund support of KRW 3,264,200,000,000 from the Korea Deposit Insurance Corporation; the Defendant Bank suspended new hiring and recruited voluntary retirees by deciding to pay a special retirement allowance equivalent to 8 months of average monthly wages; the Defendant Bank took considerable measures showing consideration for retirees, such as converting some voluntary retirees to contract employees and re-employing them, arranging re-employment for some at subsidiaries or related companies, and providing training for re-employment to some; and, through a process of consultation with the labor union, the Defendant Bank reached agreement to reduce the number of dismissals from the originally planned 356 to only 282. Considering these circumstances, it must be said that the Defendant Bank exhausted its efforts to avoid dismissal. Meanwhile, in light of the fact that the Defendant Bank, after the merger, closed 260 branches and consolidated a total of 67 departments in its head office organization, leaving only 34 departments, it appears that the Defendant Bank was in a state of serious personnel surplus; therefore, absent special circumstances showing that dismissal could have been avoided by methods such as demotion/reassignment or transfer as pointed out by the court below, it cannot be said that the Defendant Bank failed to exhaust its efforts to avoid dismissal merely on that basis.
Accordingly, the determination of the court below, made from a different view, contains an error of law in misapprehending the legal principles concerning efforts to avoid dismissal.
(3) Regarding reasonable and fair criteria for dismissal
The court below determined that, although in setting the criteria for selecting persons subject to dismissal, the subjective circumstances of each individual employee, such as the existence of dependents, property, health condition, and possibility of re-employment, should be appropriately harmonized with considerations of the employer's interests, the Defendant Bank, without any consideration whatsoever of the aspect of protecting employees' livelihoods, merely set three selection criteria — age, length of service, and work performance — and, moreover, without reasonably harmonizing these criteria, selected persons as subject to reduction immediately upon meeting any one of these criteria, without any screening process apart from some consideration of work performance; accordingly, the court below determined that the criteria for selecting persons subject to dismissal could not be said to be reasonable and fair either.
Reasonable and fair criteria for dismissal are likewise not fixed or static, but vary according to the degree of the management crisis faced by the particular employer, the managerial reasons requiring the redundancy dismissal, the content of the business division subject to the redundancy dismissal and the composition of its employees, the socio-economic circumstances at the time the redundancy dismissal was implemented, etc.; and where the employer has consulted in good faith with the labor union or employee representative regarding the criteria for dismissal and has reached an agreement thereon, this circumstance must also be taken into account in determining whether the criteria for dismissal are reasonable and fair.
Examining the case at hand: the criteria set by the Defendant Bank were, first, to target employees at Grade 3 or above, determine the number of persons to be dismissed by rank, and within each rank, to select as subject to dismissal employees who were older in age, employees with longer service, and employees with poor work performance, while excluding from among those falling under the first two criteria those with superior work performance. Considering comprehensively the facts that the Defendant Bank had promised, in the management normalization plan submitted to the Financial Supervisory Commission and the Korea Deposit Insurance Corporation in order to receive public fund support, to reduce employees at Grade 3 or above to the maximum extent possible; that the Defendant Bank reached agreement with the labor union on the above selection criteria through consultation; and that, in light of Korea's distinctive seniority-based wage system, dismissing older, longer-serving employees in higher, relatively higher-paid ranks would minimize the number of persons to be dismissed, it must be said that the above criteria set by the Defendant Bank were, in the circumstances at the time, reasonable and fair criteria in their own right and are acceptable; and, in light of the necessity of promptly concluding the redundancy dismissal process to ensure stability, the fact that the individual personal circumstances of each employee, which are easily subject to swaying by subjective judgment, were not considered one by one cannot lead to a different conclusion.
Accordingly, the determination of the court below, made from a different view, contains an error of law in misapprehending the legal principles concerning reasonable and fair criteria for dismissal.
(4) Regarding good-faith consultation with the labor union
The court below premised its determination on the view that the purpose of Article 31, Paragraph 3 of the Labor Standards Act is to adjust interests through consultation with an organization capable of representing the interests of employees at the time of redundancy dismissal, and that in light of this purpose, where the persons subject to reduction are limited to a specific job category or rank, consultation is required with the labor union if a majority of the persons subject to reduction are members of the labor union, and otherwise with a person representing a majority of such employees; and accordingly, if the specific job category or rank in question is one whose members were originally ineligible to join the labor union, then consultation with the labor union regarding the reduction should be regarded as meaningless. Based on this premise, the court below determined that, since in this case the persons subject to reduction were limited from the outset to employees at Grade 3 or above who were ineligible for union membership in the Defendant Bank's labor union, the Defendant Bank, in reducing personnel, was required to engage in good-faith consultation with an organization or individual representing a majority of all employees at Grade 3 or above, or of the employees at each respective rank; however, since the Defendant Bank went through only a consultation procedure with the labor union — which had no persons subject to reduction among its members and thus had no particular stake in the matter, and could even be viewed as having conflicting interests in some respects — it was difficult to say that the Defendant Bank had fulfilled its duty of good-faith consultation regarding the personnel reduction in this case.
The purpose of Article 31, Paragraph 3 of the Labor Standards Act (근로기준법), which provides that an employer must give advance notice and consult in good faith regarding methods of avoiding dismissal and criteria for dismissal, etc., with the labor union organized by a majority of the employees of the relevant business or workplace, if such a union exists, or, if there is no labor union organized by a majority of employees, with a person representing a majority of the employees (employee representative), and which thereby provides for the procedural requirements of a redundancy dismissal, is to guarantee the fulfillment of the substantive requirements for redundancy dismissal set forth in Paragraphs 1 and 2 of the same Article, and also reflects the view that even an unavoidable redundancy dismissal is desirably carried out amid mutual understanding achieved through a process of consultation. Considering the purpose of this provision, the wording of the provision, the degree of fulfillment of the substantive requirements in this case, including the urgency of the managerial necessity requiring the redundancy dismissal; the fact that the Defendant Bank's labor union had previously, in conducting collective bargaining such as wage negotiations with the employer, included and concluded agreements covering matters relating to employees at Grade 3 or above as well; and the fact that, with respect to the redundancy dismissal at issue in this case as well, the labor union engaged in consultation and, after fierce struggle, succeeded in reaching agreement to reduce the number of target persons from the originally planned 356 to 282 — considering all of these circumstances together, in this case, where there existed, throughout the entire workplace of the Defendant Bank in which the redundancy dismissal at issue was carried out, a labor union organized by a majority of the employees, it cannot be said that the redundancy dismissal in this case is invalid due to a defect in the consultation procedure merely because the Defendant Bank, in addition to consulting with the labor union as required by the wording of the above provision, did not have a new representative elected solely by the employees at Grade 3 or above who were subject to the redundancy dismissal and did not consult separately with such representative.
The determination of the court below, made from a different view, contains an error of law in misapprehending the legal principles concerning Article 31, Paragraph 3 of the Labor Standards Act.
(5) Next, we examine whether the Defendant Bank dismissed the Plaintiff by way of redundancy dismissal in excess of the number of persons agreed upon with the labor union.
The court below determined that the number of persons which the Defendant Bank had agreed with the labor union to reduce was 282, and that, since 281 persons among those subject to reduction other than the Plaintiff, together with 5 persons who were not subject to reduction, applied for voluntary retirement — thereby exceeding the reduction target agreed upon with the labor union — the Defendant Bank's dismissal of the Plaintiff by way of redundancy dismissal was invalid, even though the reduction target under the agreement with the labor union had already been exceeded.
However, according to the record, it can be seen that the number of persons which the Defendant Bank had originally planned to reduce on February 12, 1999 was 356, and it prepared a list of the same number of persons subject to reduction by applying the criteria described above; that, as a result of implementing voluntary retirement, around the end of February 1999, 5 persons who were not subject to reduction applied for voluntary retirement; and that, since the labor union was at the time strongly demanding a reduction in the number of persons subject to reduction, the Defendant Bank, on March 4, 1999, excluded some younger employees and employees with lower salary steps from the originally planned 356 persons subject to reduction, reducing the number of persons subject to reduction to 282, and reached agreement with the labor union on this basis. In light of the timing of the voluntary retirement applications by the 5 persons who were not subject to reduction, the timing of the above agreement, and the process of the agreement with the labor union, which sought to minimize the number of persons to be reduced, it must be viewed that the Defendant Bank and the labor union agreed on the figure of 282 as the number of additional persons to be dismissed by way of redundancy dismissal, taking into account the voluntary retirement applications of the 5 persons who were not subject to reduction.
Nevertheless, the court below determined that the reduction number of 282 agreed upon between the Defendant Bank and the labor union did not take into account the voluntary retirement of the 5 persons who were not subject to reduction, and that, since the number of voluntary retirement applicants was 286 — exceeding the reduction number agreed upon with the labor union — the Defendant Bank's dismissal of the Plaintiff by way of redundancy dismissal in violation of that agreement was invalid. This determination of the court below contains an error of law in misinterpreting the content of the above agreement in violation of the rules of evidence or contrary to the rules of experience.
C. Accordingly, the determination of the court below contains errors of law that affected the outcome of the judgment, in misapprehending the legal principles concerning redundancy dismissal or in misapprehending the facts in violation of the rules of evidence, etc., and the grounds of appeal pointing this out are all well-founded.
3. Regarding the validity of the personnel order dated February 27, 1999 and the leave of absence order dated March 27, 1999
According to the facts lawfully established by the court below, the Plaintiff was working as the manager of the Individual Customer Business Branch at the Iksan Central Branch; after selecting the Plaintiff as a person subject to redundancy dismissal and notifying him thereof, the Defendant Bank issued a personnel order transferring him to the position of Investigator in the Personnel Department effective February 27, 1999, and issued a leave of absence order on March 27 of the same year. The court below determined that the above personnel order and leave of absence order issued by the Defendant Bank against the Plaintiff were personnel measures taken to force the Plaintiff to retire in the course of the redundancy dismissal process, constituting an abuse of personnel discretion, and were therefore invalid.
First, with regard to the personnel order dated February 27, 1999: the Defendant Bank explains that the reason for the above personnel order was that, in the situation where the Plaintiff had been selected and notified as a person subject to redundancy dismissal, it judged that it would be difficult to allow the Plaintiff to continue performing his duties in his current position; and, in light of the content of the duties which the Plaintiff was performing at the time, it must be said that the managerial necessity cited by the Defendant Bank as the reason for the personnel order has reasonableness; the above personnel order did not cause the Plaintiff any disadvantage in terms of salary or treatment; on the other hand, the mere fact that the above personnel order was issued in the course of implementing the redundancy dismissal cannot give rise to a presumption that it was issued in order to force the Plaintiff to retire, and there is no material in the record sufficient to establish such an intent on the part of the Defendant Bank. Nevertheless, the court below, without any evidence, concluded that the Defendant Bank issued the above personnel order in order to force the Plaintiff to retire, and, based on this factual finding, determined that the above personnel order was an abuse of personnel authority and therefore invalid; accordingly, this factual finding and determination of the court below contain an error of law in misapprehending the facts in violation of the rules of evidence, or in failing to state adequate reasons or stating contradictory reasons. The grounds of appeal pointing this out are well-founded.
Next, with regard to the leave of absence order dated March 27, 1999: according to the record, it can be seen that, after reaching agreement with the labor union on March 4, 1999 regarding the number of persons subject to reduction and the criteria for reduction, the Defendant Bank implemented voluntary retirement effective February 27, 1999 for employees who had applied for voluntary retirement during the voluntary retirement period, and formed a policy of dismissing the Plaintiff by way of redundancy dismissal, as the Plaintiff was the sole person among those agreed upon with the labor union as subject to reduction who had not applied for voluntary retirement; and, since the Plaintiff had not been reporting to work and could not be reached since the personnel order dated February 27, 1999, the Defendant Bank judged that it would be difficult to have the Plaintiff continue working in his current position until the redundancy dismissal process was concluded, and accordingly issued the leave of absence order against the Plaintiff by applying Article 4, Paragraph 5, Chapter 6 of the Personnel Management Guidelines, which allows a leave of absence order to be issued "when a leave of absence is deemed unavoidable due to other circumstances of the employee or the bank." Accordingly, it cannot be said that the above leave of absence order was an abuse of personnel authority and therefore invalid.
Accordingly, the determination of the court below, that the above leave of absence order was a personnel measure constituting an abuse of personnel discretion, issued in order to effectively force the Plaintiff to retire, and was therefore invalid, contains an error of law in misapprehending the facts in violation of the rules of evidence, or in failing to state adequate reasons or stating contradictory reasons. The grounds of appeal pointing this out are well-founded.
4. Conclusion
Accordingly, the judgment below is reversed, and the case is remanded to the court below for retrial and determination; this judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Park Jae-yoon (Presiding Justice), Seo Seong, Lee Yong-woo (Justice in charge), Bae Ki-won