[Plaintiff, Appellee]
[Defendant, Appellant] Samcheok Munhwa Broadcasting Corporation (Attorneys Lee Jae-hoo and 1 other, as Counsel)
[Lower Court Judgment]
Seoul High Court Decision 94Na33332, decided November 21, 1995
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Defendant.
[Reasoning]
We examine the grounds of appeal.
On the First Ground of Appeal
The court below determined that, although the Plaintiff, as a supervisory authority, played golf three times with subordinate employees during working hours on Saturdays, and caused this to be published in a press labor union bulletin, which constitutes grounds for disciplinary action as a violation of company regulations or company orders, gross negligence of duty, defamation of the Defendant company due to serious negligence, and insubordination against a work order without justifiable reason, the selection of dismissal—the most severe type of disciplinary action—was excessively harsh and constituted a significant abuse of the disciplinary authority. Upon examination of the record, it is clear that the court below rendered this judgment taking into account the Plaintiff's position and on the premise that there had been an instruction from the employer prohibiting golf, and it cannot be said, as argued in the grounds of appeal, that the court below excluded consideration of the Plaintiff's position and the existence of the golf prohibition instruction. Therefore, the argument that the lower court's judgment is erroneous in misunderstanding the legal doctrine on abuse of disciplinary authority, premised on the exclusion of these factors, cannot be accepted.
On the Second Ground of Appeal
The court below rejected the Defendant's argument that, after being disciplinarily dismissed, the Plaintiff wandered around the company premises, habitually uttering abusive language to employees and disrupting the atmosphere of the workplace, showing no sign of remorse, on the ground that even if such circumstances were recognized, the legality and justifiability of the disciplinary action must be judged based solely on the grounds for the disciplinary action itself, and that while the Defendant might impose a separate disciplinary measure on the basis of such conduct, it should not use such grounds to determine the justifiability of the dismissal in this case.
Even misconduct occurring after a disciplinary action, if it constitutes misconduct of such a degree that, under generally accepted social norms, the employment relationship cannot be continued, may be considered as material for determining the appropriateness of the disciplinary measure (see this Court's Decisions 91Da6740, decided November 22, 1991, and 94Da52294, decided September 5, 1995). Therefore, if the portion of the lower court's judgment pointed out in the grounds of appeal is to the effect that the Plaintiff's misconduct after the disciplinary action cannot even be considered as material for determining the appropriateness of the disciplinary measure, this would be erroneous. However, upon comprehensive consideration of the statements in Evidence Eul No. 9 and Evidence Eul Nos. 15 through 19, which the court below did not reject, together with the testimony of Witness ○○○, it appears that the Plaintiff, believing that his dismissal was caused by pressure from union members, used abusive language toward union members and showed no sign of remorse for his misconduct. However, this appears to be an expression of protest against union members whom he believed to have caused the unexpectedly excessive disciplinary outcome resulting from his own misconduct as described above, and in the absence of any other material showing that this constitutes misconduct of such a degree that the labor relationship cannot be continued, even taking such circumstances into account, it is difficult to regard the dismissal in this case as justified. Therefore, this error does not affect the conclusion. The argument that the lower court's judgment is erroneous in misunderstanding the legal doctrine concerning grounds for disciplinary action also cannot be accepted.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the Defendant, the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Lee Don-hee (Presiding Justice), Kim Seok-soo (Justice in Charge), Jeong Gwi-ho, Lee Im-soo