[Plaintiff, Appellant]
[Defendant, Appellee]
[Judgment Below] Seoul High Court Judgment 95Na39641, decided April 18, 1996
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Facts established by the court below
(1) The Plaintiff, who worked as a bus driver for the Defendant, suffered injuries in a traffic accident on September 2, 1994, while returning home after finishing his duties, and was hospitalized. He was absent from work without leave without submitting an application for leave of absence, and only on October 22 of the same year did he submit an application for leave of absence stating the leave period as running until November 15 of that year.
(2) Although Article 21, Item 2 of the Defendant's collective bargaining agreement provides that the period of leave of absence shall not exceed 45 days, the Plaintiff applied for a lengthy leave of absence of as much as 74 days as described above. The Defendant initially intended to disapprove the Plaintiff's application for leave of absence, but a labor supervisory officer recommended that the application be accepted in the interest of labor-management harmony, and the Defendant accepted the Plaintiff's application for leave of absence in accordance with that recommendation.
(3) Article 21, Item 4 of the Defendant's collective bargaining agreement provides that an application for reinstatement must be submitted no later than the day before the expiration of the leave period, and that failure to submit such an application shall be deemed to indicate an absence of intent to be reinstated; at the same time, Article 23, Item 6 provides that if an application for reinstatement is not submitted by the day before the expiration of the leave period, the employee shall be subjected to a retirement disposition. When the Plaintiff, three days before the expiration of his leave period, merely sent a certified letter requesting that his leave period be extended to December 20 of that year, without submitting an application for reinstatement, the Defendant, pursuant to Article 23, Item 6 of the above collective bargaining agreement, imposed a retirement disposition on the Plaintiff effective November 18 of that year.
2. As to the Second Ground of Appeal
The argument made is as follows: First, Article 21, Item 1 of the collective bargaining agreement provides that an employee who is unable to work for 30 days or more due to illness, suspension of license, or other personal reasons must submit an application for leave of absence; Item 6 of the same Article provides that, in the case of illness (requiring hospitalization) or fracture patients, the employee shall be treated as being on paid leave for 20 days, limited to once per year; and Article 23, Item 7 separately provides, as a distinct ground for retirement, the case in which continued work is determined to be impossible due to a chronic illness. Accordingly, it is argued that under the Defendant company's collective bargaining agreement, it is to be interpreted as permitting an employee to take consecutive leaves of absence of 45 days each on two or more occasions, and therefore the ground for retirement provided in Article 23, Item 6 of the collective bargaining agreement should be interpreted as including only cases where the employee fails to submit either an application for reinstatement or a renewed application for leave of absence by the day before the expiration of the leave period, or cases where a renewed application for leave of absence is submitted but lacks reasonable grounds and therefore cannot be accepted; thus, in a case such as the Plaintiff's, where the injury sustained in the traffic accident had not healed and an application for extension of leave was submitted before the expiration of the leave period, this does not fall under the ground for retirement set forth in Article 23, Item 6 of the collective bargaining agreement. Second, it is argued that if Articles 21, Items 2 and 4, and Article 23, Item 6 of the collective bargaining agreement are not interpreted as above, but rather are interpreted to mean that any employee unable to return to work beyond 45 days shall be treated as retired, then the collective bargaining agreement would violate Article 27, Paragraph 1 of the Labor Standards Act (근로기준법), which requires just cause for dismissal, and would therefore be void; accordingly, it is argued that the judgment below, having interpreted the agreement to the contrary, contains an error of misunderstanding the law.
However, Article 21, Item 2 of the collective bargaining agreement merely provides that the leave period shall not exceed 45 days, without providing any provision regarding the extension of the leave period. Rather, Article 21, Item 4 provides that failure to submit an application for reinstatement by the day before the expiration of the leave period shall be deemed to indicate an absence of intent to be reinstated, and at the same time, Article 23, Item 6 provides that failure to submit an application for reinstatement by the day before the expiration of the leave period shall result in retirement treatment. Accordingly, it is reasonable to interpret these provisions as meaning that the Defendant, being a bus transportation company, provided in its collective bargaining agreement that an employee who is unable to return to work beyond the 45-day leave period shall be treated as retired, in order to prevent paralysis of its operations due to an employee's prolonged absence. The provisions of Article 23, Item 7 and Article 21, Item 6 of the collective bargaining agreement cannot have any bearing on the foregoing interpretation. Furthermore, interpreting Article 23, Item 6 of the collective bargaining agreement, which concerns automatic retirement, in the manner described above does not render that provision void as being in violation of Article 27, Paragraph 1 of the Labor Standards Act. Therefore, this argument is without merit.
However, where a collective bargaining agreement provides for the occurrence of a certain event as a ground for retirement, except in cases such as death, mandatory retirement age, or expiration of the term of the employment contract, which result in the automatic extinction of the employment relationship, a retirement disposition made pursuant to such collective bargaining agreement also constitutes a dismissal as provided in Article 27 of the Labor Standards Act, and is thus subject to the restrictions of the Labor Standards Act (see this Court's Judgment 92Da54210, decided October 26, 1993, among others). Accordingly, the mere fact that a ground for retirement as formally prescribed in the collective bargaining agreement, etc., has arisen does not in itself mean that the Defendant's retirement disposition satisfies the requirement of just cause under Article 27, Paragraph 1 of the Labor Standards Act. According to the reasoning of the judgment below, the court below determined that the just cause requirement of Article 27, Paragraph 1 of the Labor Standards Act was satisfied merely by the fulfillment of the formal requirements under the collective bargaining agreement, and there is some deficiency in the reasoning set forth therein. Nevertheless, in light of the fact that permitting the Plaintiff, a driver who was hospitalized due to an accident that was not a work-related injury, to take a leave of absence for a period approximately three times longer than the maximum period prescribed in the collective bargaining agreement would cause substantial disruption to the Defendant company's operations, it must be said that the Defendant's retirement disposition in this case had just cause. Therefore, the judgment below is justified in its conclusion.
3. As to the First Ground of Appeal
Although the Plaintiff argued that the content of the collective bargaining agreement violated Article 27, Paragraph 1 of the Labor Standards Act and was therefore void, it is clear from the reasoning of the judgment below that the court below failed to render a determination on this point. However, as discussed in the determination on the second ground of appeal, the content of the collective bargaining agreement cannot be deemed void, and therefore the above defect in the judgment below could not have affected the outcome of the judgment. Accordingly, this argument is also without merit.
4. Therefore, the appeal is 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 Jeong Gwi-ho, Justice Kim Seok-su, Justice Lee Don-hui, Justice Lee Im-su (Justice in charge)