[Plaintiff, Appellant] Plaintiff, Litigation Representative Haemaru Comprehensive Law Firm, Attorneys in Charge Cheon Jeong-bae and 2 others
[Defendant, Appellee] Donghun Unsu Co., Ltd., Litigation Representative Attorney Kim Gwang-jeong
[Court Below] Seoul High Court Decision 93Na15177 dated April 13, 1994
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Regarding the grounds for disciplinary action and the legitimacy of the dismissal
A. According to the reasoning of the judgment below and the reasoning of the first instance judgment cited by the judgment below, the court below found the following facts: while working as a taxi driver for the Defendant, the Plaintiff (1) was absent from work without justifiable reason on June 4 and June 6, 1989; (2) caused traffic accidents (resulting in injury and death) on August 14, 1989 and at approximately 01:00 on January 3, 1991, thereby causing the Defendant to incur damages corresponding to the increased insurance premiums resulting from the increased insurance rate; (3) on February 28, 1992, even after the Defendant's labor union's regular general meeting had been closed, incited approximately 40 union members for one hour on the pretext that a vote of no confidence against the union chairman, Non-party 1, was to be cast and counted, thereby preventing them from returning to their driving duties and causing damages equivalent to the reduction in transportation revenue during that one hour; (4) made deposits falling short of the standard transportation revenue amount on six occasions in February 1992 and four occasions in March 1992, and, in an article contributed to the Defendant's labor union's monthly publication "Donghun Nobo" published on April 11, 1992 (which appears from the record to be a clerical error for April 10), wrote content stating that "at the previous general meeting, the company's executive director, Non-party 2, entered the labor union meeting hall, and after talking with the union chairman, declared the meeting closed in the middle of the meeting while two union members' seats remained, and closed the curtain alone," thereby causing confrontation between union members and the Defendant and defaming the honor of the said Non-party 2; (5) on the 12th of the same month, neglected to check the vehicle's temperature meter, which is part of a driver's ordinary duties, and drove at excessive speed, causing engine overheating that resulted in a breakdown of the taxi, thereby causing the Defendant to spend 130,000 won in repair costs and rendering the vehicle unable to be operated for three days during the repair period; and (6) at approximately 11:00 on the 13th of the same month, when the said Non-party 2 refused the Plaintiff's request for recognition of transportation revenue for the hours during which the Plaintiff had been unable to work due to the vehicle breakdown of the previous day, cursed at the said Non-party 2. The court below found that the Defendant disciplinarily dismissed the Plaintiff on April 25, 1992 on the grounds of these acts of misconduct, and then determined that the Plaintiff's aforementioned acts constituted grounds for disciplinary action under the collective bargaining agreement and rules of employment as set forth therein, and that there was justifiable cause for the disciplinary dismissal of the Plaintiff on these grounds. The court below rejected the Plaintiff's argument that the dismissal constituted an unfair labor practice, on the ground that there was no evidence to prove this.
Upon examination of the record, the above fact-finding and determination of the court below are all justified, except for the portion concerning the unauthorized absence of two days in (1) above, and there is no illegality such as violation of the rules of evidence, misapprehension of facts, or misunderstanding of legal principles as argued in the grounds of appeal.
B. However, with respect to the unauthorized absence of two days in (1) above, considering that Article 23, Paragraph 1 of the collective bargaining agreement stipulates unauthorized absence of three days or more as grounds for disciplinary action, and that in this case there is no evidence that the Plaintiff engaged in unauthorized absence or performed work unfaithfully during the two years and ten months from the time of the said unauthorized absence until the time of dismissal, or during the two years and eight months until the shortfall in deposits of the standard transportation revenue amount under ground for disciplinary action (4) occurred, and considering that the said unauthorized absence cannot be deemed to fall under "significantly poor work performance" under Article 23, Paragraph 5 of the collective bargaining agreement, or "poor attendance record and unfaithful performance of work" under Article 46, Paragraph 1, Item 4 of the rules of employment, it cannot be deemed that this constitutes grounds for disciplinary action. Therefore, it was unlawful for the first instance court, as cited by the court below, to have recognized this as grounds for disciplinary action; however, since the dismissal of the Plaintiff is recognized as justified based solely on the remaining grounds excluding the said unauthorized absence, this error by the court below does not affect the outcome of the judgment.
C. Furthermore, considering the reality that taxi transportation companies such as the Defendant company cover their operating funds almost entirely through daily quota payments (sanggeum), the Plaintiff's act of making deposits falling short of the standard quota amount on multiple occasions as described above cannot be deemed justified (see Supreme Court Decision 94Nu1890 dated August 12, 1994). Therefore, it cannot be said that the court below's recognition of the Plaintiff's failure to pay the standard transportation revenue amount under (4) above as grounds for disciplinary action involves any error of misunderstanding of legal principles as argued in the grounds of appeal.
2. Regarding the disciplinary procedure
A. Where the provisions on disciplinary action in the rules of employment, etc. stipulate procedures such as granting the person subject to discipline an opportunity to appear and make statements, such procedures constitute a requirement for the validity of the disciplinary action. However, the purport of such provisions is that the person subject to discipline must be given an opportunity to make a statement in his own favor regarding the suspected disciplinary grounds, and it is not necessarily required that such a statement actually be made. Therefore, where such opportunity has been granted but the person, instead of making a statement, requests a postponement, the disciplinary committee may proceed to convene as scheduled without the attendance and statement of opinion of the person subject to discipline, notwithstanding the request for postponement (see Supreme Court Decisions 92Nu8699 dated May 25, 1993; 91Da30620 dated September 28, 1993, etc.).
The court below's determination, in this vein, that the Plaintiff, having failed to attend the disciplinary committee while requesting a further postponement even after the Defendant had postponed the convening of the disciplinary committee in accordance with the Plaintiff's request for postponement, thereby voluntarily waived the opportunity to make a statement, is justified, and the argument disputing this is without merit.
B. Where the rules of employment, etc. contain a provision stating that a disciplinary committee member who has an interest in the grounds for disciplinary action may not attend the disciplinary committee, if such an interested person attended the disciplinary committee as a committee member, the disciplinary action would have a serious procedural defect and would be void (see Supreme Court Decision 94Da7553 dated August 23, 1994). However, where no such provision exists, even if an interested person attended the disciplinary committee as a committee member, the disciplinary action cannot be deemed void on that ground.
The court below's determination, in this vein, that the disciplinary dismissal of the Plaintiff was not unlawful even though Non-party 1 and Non-party 2, who had an interest in the grounds for disciplinary action, attended the disciplinary committee as committee members, is justified, and the argument disputing this is without merit.
C. The argument that the disciplinary dismissal of the Plaintiff is void on the ground that the chairperson of the disciplinary committee made the decision unilaterally while disregarding the opinions of the majority of the disciplinary committee members is a new argument that the Defendant did not raise before the court below, and therefore cannot constitute a lawful ground of appeal.
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.
Supreme Court Justice Lee Im-su (Presiding Judge), Kim Seok-su, Jeong Gwi-ho (Justice in Charge), Lee Don-hui