[Plaintiffs, Appellees]
[Defendant, Appellant] Daegu Metropolitan City Jung-gu Medical Insurance Cooperative (Litigation Representative: Dongyang General Law Firm, Attorneys Kim Seong-gi and 4 others)
[Judgment Below]
Daegu High Court Judgment 1994. 7. 7., 93Na4213
[Order]
The judgment below is reversed, and the case is remanded to the Daegu High Court.
[Reasoning]
We examine the grounds for appeal.
1. Summary of Facts Found by the Court Below
The Plaintiffs were staff members of the Defendant Cooperative and, at the same time, Plaintiff 2 served as the Head of the Department of the Daegu Regional Medical Insurance Labor Union (hereinafter "Daegu Regional Union"), and Plaintiff 1 served as the Branch Head of the Daegu Regional Union. At a meeting of the chairpersons of the National Medical Insurance Labor Union held on May 8, 1990, in protest against the Ministry of Health and Social Affairs' 1990 policy of reducing overtime allowances for employees of medical insurance cooperatives and its policy of recovering the December 1989 meal expenses, the members of the regional medical insurance labor unions nationwide resolved to collectively take monthly leave on May 23, 1990. The Daegu Regional Union also resolved, at a countermeasures meeting held on May 22, 1990, attended by the department heads of the regional union, including the Plaintiffs, and the branch heads under its jurisdiction, to participate in this action. Upon learning of this, the Defendant Cooperative notified that it could not approve the collective monthly leave, as it was an unlawful act that would cause substantial disruption to its operations, and that any union member who carried it out regardless would be dealt with according to law. Nevertheless, the Plaintiffs and Non-party 1, the Department Head of the Daegu Regional Union, encouraged union members to participate in the collective monthly leave, resulting in 40 out of the 45 union members of the Defendant Cooperative submitting leave requests and not reporting to work the following day, instead gathering at the Hwawon Amusement Park in the city, thereby causing disruption to the Defendant Cooperative's business operations.
Article 40 of the Defendant Cooperative's Operating Regulations then in effect provided, as a general duty of employees, that employees must comply with the various regulations concerning medical insurance and faithfully perform their duties, and in performing their duties, must obey the official orders of their superiors, and prohibited leaving one's post during working hours without justifiable cause or the permission of a superior, or engaging in collective action that results in infringement of the rights and interests of the insured. In addition, Article 35, Paragraph 1 provided that the Representative Director may, after resolution by the Personnel Committee, decline to assign a position to a person who lacks the ability to perform duties or whose work performance is poor, or whose work attitude is extremely unfaithful (Item 1), a person for whom disciplinary action is pending (Item 2), or a person who has been indicted for a criminal case (Item 3). Paragraph 2 provided that, where a position has not been assigned pursuant to Paragraph 1, the position shall be assigned without delay once the grounds therefor have ceased to exist. Paragraph 3 provided that a person whose position has been withheld pursuant to Item 1 of Paragraph 1 shall be automatically retired if such person has not been assigned a position even after three months have elapsed from the date the position was withheld. The Defendant Cooperative held a Personnel Committee meeting on May 28, 1990, and determined that the Plaintiffs and the above Non-party 1, by disobeying the official orders of their superiors as provided in Article 40 of the Operating Regulations, leaving their posts without permission, and engaging in collective action infringing upon the rights and interests of the insured, fell under the category of persons with an extremely unfaithful work attitude under Article 35, Paragraph 1, Item 1 of the Operating Regulations, and accordingly imposed a position-withholding disposition on each of them.
On July 30, 1990, the Daegu Regional Labor Relations Commission proposed a settlement condition to the Plaintiffs and the above Non-party 1, whereby the persons whose positions had been withheld would acknowledge the position-withholding that had occurred and endeavor to comply with the Operating Regulations, and the Defendant Cooperative would assign the original position to the persons whose positions had been withheld. The above Non-party 1 accepted this proposal, whereas the Plaintiffs rejected it and did not respond to the request to withdraw the lawsuit already filed seeking confirmation of the invalidity of the position-withholding disposition. Accordingly, the Defendant Cooperative assigned a position to the above Non-party 1 but did not assign positions to the Plaintiffs. At the Personnel Committee meeting held on August 27, 1990, on the grounds that the Plaintiffs continued to refuse the settlement and did not withdraw the lawsuit, it was resolved to treat the Plaintiffs as automatically retired pursuant to Article 35, Paragraph 3 of the Operating Regulations, and on August 28, 1990, this fact was notified to them.
Meanwhile, on April 4, 1991, the Defendant Cooperative amended Article 35, Paragraph 3 of the Operating Regulations to provide that a person whose position has been withheld shall be ordered to stand by for a period not exceeding three months, during which necessary measures such as education and training or the assignment of special research tasks for the recovery of ability or improvement of attitude shall be taken, and newly established Article 33, Item 6, providing that a person whose position remains withheld, if found, after the lapse of such period, to show no improvement in ability or no sign of repentance, may be dismissed ex officio with the consent of the Personnel Committee. The lawsuit seeking confirmation of invalidity of the above position-withholding disposition filed by the Plaintiffs was dismissed by the final judgment of the Supreme Court, which held that the disposition was lawful.
2. Summary of the Judgment Below
Based on the facts found as above, the court below determined as follows: Where the Defendant Cooperative imposes a position-withholding disposition on an employee and thereafter fails to assign a position, thereby treating the employee as automatically retired, this constitutes a type of dismissal that terminates the employment contract against the will of the employee and by the unilateral intent of the employer. Therefore, in effecting the automatic retirement treatment, the grounds and procedures established by the Defendant Cooperative must be followed, and there must be a justifiable reason for dismissal as provided in Article 27, Paragraph 1 of the Labor Standards Act (근로기준법). Examining the propriety of the measure taken against the Plaintiffs—namely, the position-withholding disposition followed by the failure to assign a position and the treatment as automatic retirement—the position-withholding disposition is not itself an independent type of disciplinary action but rather a disposition preceding the dismissal procedure of removal from office, the purpose of which is to restore order to the disrupted employment relationship and, during the period of position-withholding, to enable the employer and employee to jointly resolve the cause that gave rise to the position-withholding so as to return to a normal employment relationship. Accordingly, the content of Article 35, Paragraph 3 of the Operating Regulations as subsequently amended in this spirit may be regarded as a concretization of the inherent standard of "justifiable reason" provided in Article 27, Paragraph 1 of the Labor Standards Act, and, in addition, the gravity of the grounds for position-withholding, the employee's conduct during the period of position-withholding, and the reasonableness of the grounds for not assigning a position are also standards for determining the justifiability of the removal treatment. On this premise, the court below found that the Defendant Cooperative effected the removal treatment solely on the ground that the Plaintiffs did not withdraw the lawsuit contesting the justifiability of the position-withholding, and that no other measures, such as education and training or the assignment of special research tasks aimed at returning the Plaintiffs to a normal employment relationship, could be found to have been taken. In light of this, together with the circumstances set forth by the court below concerning the Plaintiffs' collective leave-taking conduct in this case, and the fact that it was unreasonable for the Defendant Cooperative to have set, as conditions for assigning a position, the Plaintiffs' acknowledgment of the justifiability of the position-withholding disposition and withdrawal of the lawsuit, and to have treated the Plaintiffs' refusal thereof as material for determining whether they had shown repentance, or to have presented an expression of intent to comply with the Operating Regulations as a condition for assigning a position, the court below concluded that the Defendant Cooperative's failure to assign positions to the Plaintiffs constituted an abuse of the right to discipline. Accordingly, the court below determined that the Defendant Cooperative's refusal to assign positions to the Plaintiffs and its treatment of them as removed from office did not fall under circumstances involving justifiable reason as provided in the Labor Standards Act, and that the Defendant Cooperative's removal treatment of the Plaintiffs in this case was therefore invalid.
3. Judgment of This Court
In this case, the automatic retirement treatment whose invalidity the Plaintiffs contest was effected on the basis of Article 35, Paragraph 3 of the same Article, on the ground that, after the Plaintiffs received a position-withholding disposition on the basis that they fell under the grounds set forth in Article 35, Paragraph 1, Item 1 of the Defendant Cooperative's Operating Regulations, they had not been assigned a position even after three months had elapsed thereafter. Such automatic retirement treatment, following the position-withholding disposition, when observed as an integrated whole, constitutes the termination of the employment contractual relationship against the will of the employee and by the unilateral intent of the employer, and thus is substantively equivalent to dismissal; accordingly, such disposition must be regarded as subject to the restrictions imposed by the Labor Standards Act.
However, examining the relationship between the position-withholding disposition and the automatic retirement treatment in this case, under the Defendant Cooperative's Operating Regulations, a person who has received a position-withholding disposition thereby acquires, by virtue of the effect of the position-withholding disposition itself, a considerable probability of being treated as automatically retired under certain conditions. On the other hand, the automatic retirement treatment is a disposition effected because the state of position-withholding continues for three months following the position-withholding without a position being assigned. Therefore, once a position-withholding disposition has been justifiably imposed, unless there exist circumstances such that, during the subsequent three-month period, the grounds for the position-withholding have ceased to exist—for example, through the recovery of the ability to perform duties or improvement in work attitude—such that a position ought properly to be assigned, and yet the position is not assigned without reasonable cause, the automatic retirement treatment itself cannot be regarded as constituting an abuse of the right of personnel management or the right to discipline.
In this case, it has already been finally determined by judgment that the Plaintiffs' conduct in leading the collective monthly leave constituted an unlawful labor dispute act, the degree of misconduct involved being serious, and that the position-withholding disposition resulting therefrom was justified. Accordingly, even though the Defendant Cooperative proposed the settlement condition that it would assign positions if the Plaintiffs acknowledged the position-withholding disposition and withdrew the lawsuit, the Plaintiffs refused this; and inferring therefrom that their work attitude had not improved, the Defendant Cooperative's failure to assign positions cannot be deemed unreasonable. Moreover, no material can be found in the record showing that, during the aforementioned three-month period, there existed circumstances such as the cessation of the grounds for position-withholding with respect to the Plaintiffs, such that a position ought to have been assigned. Furthermore, the provision requiring the Defendant Cooperative to take measures such as education and training for persons whose positions have been withheld was introduced only in the Operating Regulations as amended after this case, and whether such provision was complied with is not appropriate material for determining whether the automatic retirement treatment in this case was unlawful. Accordingly, it is difficult, based solely on the circumstances relied upon by the court below, to conclude that the Defendant Cooperative's measure of treating the Plaintiffs as automatically retired constituted an abuse of the right of personnel management or the right to discipline.
Nevertheless, the court below's determination, for the reasons stated in its judgment, that the automatic retirement treatment in this case is invalid, constitutes an error of law affecting the judgment, arising from a misunderstanding of the legal principles concerning automatic retirement resulting from position-withholding. Accordingly, the argument pointing out this error has merit.
Therefore, without rendering judgment on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered by the unanimous opinion of the participating Justices, as stated in the Order.
Justice Cheon Gyeong-song (Presiding Justice), Ji Chang-gwon, Shin Seong-taek (Justice in Charge)