[Plaintiff, Appellant]
[Defendant, Appellee] Chunggwang Industrial Co., Ltd.
[Judgment Below] Seoul High Court Decision 93Na35195 rendered on October 5, 1994
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The Plaintiff's grounds of appeal are examined as follows.
1. As to Ground No. 1
Where an agreement is concluded to transfer and acquire part of another company's business division, and it is agreed that its personnel organization as well as its physical facilities shall be comprehensively succeeded to, the employment relationships between the transferor and its employees shall in principle be comprehensively succeeded to by the transferee. However, the employment relationships thus succeeded to mean only the employment relationships with employees who were actually working in the relevant business division as of the date the contract was concluded, and do not extend to employment relationships with employees who worked in the relevant business division prior to the date the contract was concluded but were dismissed and are disputing the validity of such dismissal (see Supreme Court Decision 91Da41750 rendered on May 25, 1993).
Moreover, the parties to a business transfer agreement may set the reference date for succession on a date different from the date the contract was concluded, taking into account the period required for the transfer process, among other factors.
According to the record, on September 21, 1992, the Defendant company entered into a contract with Moksan Tourism Development Co., Ltd. (hereinafter referred to as the "non-party company") to acquire the business rights of Hotel Moksan, which was part of the non-party company's business, and agreed to take over all hotel employees who were in service as of October 1, 1992, a date subsequent to the date of the contract. It can be recognized that the non-party company had disciplinarily dismissed the Plaintiff, who was a cook at the said hotel, prior to the aforementioned reference date for succession of the employment relationship. Given these facts, even if the Plaintiff is disputing the validity of the dismissal, since the dismissal occurred prior to the reference date for succession of the employment relationship, absent special circumstances, the employment relationship between the Plaintiff and the non-party company shall not be deemed to have been succeeded to by the Defendant company.
The judgment below, which is to the same effect, is justified, and it cannot be said that there is an error of law in misapprehending the legal principles concerning the transfer of employment relationships upon business transfer, as argued in the grounds of appeal. This ground is without merit.
2. As to Ground No. 2
Where there is a special agreement between the parties to a business transfer excluding part of the employment relationships from the scope of succession, the succession of employment relationships may not take place in accordance therewith; however, since such a special agreement is substantively no different from a dismissal, it is valid only where there exists justifiable cause as prescribed in Article 27(1) of the Labor Standards Act (근로기준법) (see Supreme Court Decision 93Da33173 rendered on June 28, 1994).
However, upon examination of the record in this case, there is no evidence to support the Plaintiff's assertion that the Defendant company, being substantively the same corporate entity as the non-party company, colluded with the non-party company, out of aversion to the Plaintiff's union activities as the chairman of the non-party company's labor union, to have the non-party company dismiss the Plaintiff prior to the reference date for succession of the employment relationship, for the purpose of avoiding succession to the Plaintiff's employment relationship.
The judgment below, which rejected the Plaintiff's assertion to the same effect, is justified, and it cannot be said that there is an error of law in misapprehending the legal principles concerning unfair labor practices, an omission of judgment, or a mistake of fact in violation of the rules of evidence, as argued in the grounds of appeal. This ground is without merit.
3. Accordingly, 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 Ji Chang-gwon
Justice Cheon Gyeong-song (Presiding Reporting Justice)
Justice Ahn Yong-deuk
Justice Shin Seong-taek