[Plaintiff, Appellee] Plaintiff (Attorney Kang Hui-bu, Counsel for the Plaintiff)
[Defendant, Appellant] War Memorial Service (Attorney Kang Sin-ok, Counsel for the Defendant)
[Judgment Below] Seoul High Court Decision 97Na18976 dated December 4, 1997
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
We examine the grounds of appeal (including the supplementary brief on grounds of appeal submitted after the deadline, to the extent it supplements the grounds of appeal).
1. Regarding the grounds for disciplinary action
(1) Among the six grounds asserted by the Defendant as grounds for disciplinary action against the Plaintiff, the court below determined that the Plaintiff's act of using abusive language toward the Defendant's Secretary-General constituted conduct damaging the dignity of an employee and therefore constituted a legitimate ground for disciplinary action. However, regarding the remaining grounds, the court below determined that (i) with respect to the point concerning false reporting on the assault incident, there were limitations in the investigation methods at the time, and accordingly, when the Plaintiff made a supplementary report, the Plaintiff had expressed the opinion that the detailed allegations required judgment through interrogation in disciplinary proceedings and the hearing of testimony from relevant persons, and (ii) with respect to the point concerning the Plaintiff's delinquency in national tax payments, this was not directly related to the Defendant's business activities and did not objectively affect the Defendant's social reputation; therefore, the court below determined that these latter two grounds did not constitute legitimate grounds for disciplinary action. Upon comparison with the record, this determination is justified, and this part of the argument is without merit.
(2) Even where the language contained in a document distributed as a leaflet damages or diminishes, or creates a risk of damaging or diminishing, another person's character, credit, reputation, etc., and even where part of the factual content described in the document is false or the expressions therein are somewhat exaggerated or distorted, if the purpose of distributing the document was not to infringe upon another person's rights or interests but rather to maintain and improve working conditions and promote workers' welfare and other economic and social status, and if the content of the document is, viewed as a whole, true, then this falls within the scope of legitimate activities of a worker (see Supreme Court Decision 93Da13544 dated December 28, 1993; Supreme Court Decision 96Nu11778 dated December 23, 1997, etc.).
Regarding the ground for disciplinary action asserted by the Defendant, namely that the Plaintiff damaged the reputation of a superior by publishing a labor bulletin criticizing the Defendant's Secretary-General, the court below determined, in light of the context of the labor bulletin as a whole, that its purpose was not to infringe upon another person's rights or interests but rather to maintain and improve working conditions, and that the main content of the bulletin, including matters concerning the Ministry of National Defense's policy on the 1996 wage increase and the Secretary-General's opinion thereon, was true. The court below thus determined that even if some exaggerated or distorted expressions criticizing the Secretary-General were used in the language of the bulletin, the Plaintiff's act of publishing such a labor bulletin fell within the legitimate scope of union activities and could not be considered a ground for disciplinary action. Upon comparison with the record, the determination of the court below is acceptable, and it cannot be said that there was an error in misapprehending the rules of evidence resulting in a mistake of fact, or an error in misapprehending the legal principles concerning the scope of legitimacy of union activities, as argued. This part of the argument is also without merit.
(3) Furthermore, adding, during retrial proceedings, grounds for disciplinary action that were not relied upon as grounds for the original disciplinary action amounts to depriving the party of the opportunity for retrial with respect to the added ground, and is therefore not permitted absent special circumstances (see Supreme Court Decision 95Nu6410 dated June 14, 1996). Accordingly, with respect to the Plaintiff's act of filing criminal complaints against the Defendant's Chairman, Secretary-General, and Head of General Affairs, and the Plaintiff's discourteous conduct and disparaging remarks toward the Defendant's Chairman—which are clear from the record to be grounds added during the retrial proceedings—even if these were found to constitute misconduct, they could only serve as reference material in determining the appropriate level of disciplinary action, and could not serve as independent grounds for disciplinary action. Although the court below stated different reasons, its determination that the above grounds could not constitute legitimate grounds for disciplinary action is justified in its conclusion, and this part of the argument, to the effect that these matters constitute grounds for disciplinary action, is also without merit.
Meanwhile, among the facts found by the court below in relation to the Plaintiff's above act of filing a criminal complaint, the portion stating that "the security guard of the aforementioned service company received a higher salary than he (a Grade 9 employee)" (page 10, lines 10-11 of the judgment below) lacks any supporting evidence in the record. Thus, the judgment below contains an error in misapprehending the rules of evidence resulting in a mistake of fact, as argued. However, since the truth or falsity of such content could not have affected the determination of whether the Plaintiff's act of filing the criminal complaint constituted a legitimate ground for disciplinary action, this argument is ultimately without merit.
2. Regarding the determination of the appropriate level of disciplinary action
In addition to the disciplined person's ordinary conduct, work performance, and history of disciplinary action, misconduct not constituting grounds for disciplinary action, committed before or after the disciplinary grounds in question, may also serve as reference material in determining the appropriate level of disciplinary action (see Supreme Court Decision 96Da2378 dated April 23, 1996; Supreme Court Decision 96Nu4244 dated February 14, 1997, etc.).
As found by the court below, formally, the Defendant deducted 1% of the basic salary for September 1995 (totaling 1,529,060 won) from employees without their consent, for donations to flood disaster victims and for Chuseok charity donations for the underprivileged. Despite repeated demands from the Defendant's labor union for an apology and refund of the deducted amount, the Defendant, on November 14 of the same year, merely notified the circumstances of the deduction and the details of the donation's use, without any further response. Consequently, in early December of the same year, the Plaintiff, as chairman of the labor union, together with 61 persons including the vice-chairman, a non-party, jointly filed a criminal complaint with the Yongsan Police Station against the Defendant's Chairman, Secretary-General, and Head of General Affairs on suspicion of embezzlement. However, according to the record, from September 21 of the same year until around the time the above complaint was filed, the Defendant had repeatedly refused collective bargaining demands made by the Defendant's labor union or its higher-level labor organization, on grounds including that the Plaintiff lacked union membership qualifications, and as a result, conflict between the Plaintiff and the Defendant's management, including the Chairman and Secretary-General, had intensified. It can be readily inferred that, prior to filing the complaint, the Plaintiff, given his position and rank, would have learned from materials presented by the Defendant that the Defendant, upon receiving instructions from the Ministry of National Defense regarding fundraising, had, as a matter of customary practice and for convenience in the fundraising method, uniformly deducted 1% pursuant to a resolution of the operating committee, that half of the collected funds had clearly been remitted to a newspaper company, and that the remaining donations had generally been used for their intended purposes, with no particular individuals having embezzled the funds. In light of all these circumstances, the fact that, rather than showing a willingness to resolve internally and reasonably the relatively minor matter of refunding the deducted amount, the Plaintiff, taking the lead, chose instead to file a criminal complaint with the investigative authorities, must be regarded as an act stemming from an emotional intent to disguise the exercise of the right to file a complaint—guaranteed to victims—in order to substantively amplify and escalate the then-existing conflict between the union and the Defendant's management into a criminal matter, thereby publicly damaging and harming the reputation of the Defendant and its management.
Furthermore, according to the record, it is found that the Plaintiff, upon encountering the Defendant's Chairman—who was both older and a superior—within the workplace, failed to greet him and stated that he had decided not to greet him going forward, and, in the presence of outside persons, disparaged the Chairman by saying things such as, "He is a three-star general, but a fake one. He was good at running away during the Korean War [June 25th Incident], and he still runs well now." Such conduct cannot but be regarded as destroying workplace hierarchical order and, by itself, damaging the dignity befitting an employee.
Therefore, considering, in addition to the aforementioned ground for disciplinary action—namely, the Plaintiff's abusive language directed at the Defendant's Secretary-General—the fact that the Defendant is a small, specialized organization that, under the law, operates under the direction and supervision of the Minister of National Defense and that, as most of its members are, according to the record, former military personnel, has in reality formed and operates on the basis of a relatively strict hierarchical order of command and obedience; the fact that the Plaintiff himself is a reserve lieutenant colonel; the manner and content of the aforementioned act of filing a criminal complaint against management and the discourteous and disparaging conduct toward the Defendant's Chairman as set forth above; and the resulting disruption of workplace order and damage to the reputation of the Defendant's management caused by these acts, and taking all such matters relevant to the determination of the appropriate level of disciplinary action into consideration, it must be concluded that, apart from the fact that the Plaintiff's labor union activities are protected by law, in this case the Plaintiff, disregarding the legality of the methods and procedures employed as well as workplace order, and using or capitalizing on the pretext of the aforementioned labor union activities, repeatedly damaged the relationship of trust with the Defendant through unnecessary misconduct arising from personal sentiment, to the extent that, in light of common social norms, there exists a serious ground rendering it impossible to continue the employment relationship.
Nevertheless, the court below's determination—based solely on the reasoning set forth in its judgment—that the Plaintiff's misconduct could not be regarded as sufficiently serious to render continuation of the employment relationship with the Defendant difficult, constitutes an error in misapprehending the legal principles concerning the determination of the appropriate level of disciplinary action and the legitimate grounds for disciplinary dismissal, which affected the outcome of the judgment. The argument pointing out this error is therefore well-founded.
3. Accordingly, without rendering judgment on the remaining points, 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.
Justice Lee Yong-hun (Presiding Justice), Jeong Gwi-ho, Park Jun-seo (Justice in Charge), Kim Hyeong-seon