[Plaintiff, Appellant and Appellee] Plaintiff
[Defendant, Appellee and Appellant] Defendant Co., Ltd. (Attorney Kim Yeong-sam, Counsel)
[Judgment Below] Busan High Court Decision 93Na10156 delivered on April 21, 1994
[Order]
All appeals are dismissed.
The costs of appeal shall be borne by each party.
[Reasoning]
1. As to the grounds of appeal by the Defendant's counsel.
A. As to the first ground
(1) The court below found, based on the evidence it cited, as follows: the Plaintiff joined the Defendant company on June 25, 1988, worked in the Production Department's Technical Section, and had held the position of Head of the Education and Publicity Department since November 1, 1989; on December 16, 1989, the Plaintiff was subjected to a disciplinary suspension of two months on grounds including insubordination toward, verbal abuse of, and intimidation directed at his superior, and obstructing normal operations by going around the production site, and that disposition was finalized through the reexamination procedure; when the Defendant company urged the Plaintiff to return to normal attendance on February 15, 1990, the expiration date of the suspension period, the Plaintiff requested, through the labor union, that he be treated as on leave of absence on the ground that he could not report to work because he had been criminally charged and was being sought by the authorities; the Defendant company rejected this request and again urged him to report to work on the 20th of the same month; Article 30 of the Defendant company's collective bargaining agreement provides "continuous unauthorized absence of three days or more" as a ground for dismissal, and stipulates that in the case of such dismissal, advance notice of dismissal under Article 27-2 of the Labor Standards Act (근로기준법) shall be given, but the same provision on grounds for dismissal also includes "cases where the company's dignity is degraded or social controversy is caused by intentional act or gross negligence," and so forth; whereas Article 41 of the Rules of Employment does not include "continuous unauthorized absence of three days or more" as a ground for dismissal, but provides only for grounds for dismissal such as "when personnel reduction is carried out due to organizational restructuring," and the procedures therefor; and that the Defendant company, on February 26, 1990, dismissed the Plaintiff pursuant to Article 41 of the Rules of Employment and Article 30 of the collective bargaining agreement, without going through disciplinary procedures, on the ground that the Plaintiff had been absent without leave for three days or more. Based on these factual findings, the court below held that "unauthorized absence of three days or more" does not fall under the grounds for retirement provided in the collective bargaining agreement and the Rules of Employment; that although Article 30 of the collective bargaining agreement lists, in parallel, "unauthorized absence of three days or more" and "cases of receiving a disciplinary dismissal disposition" as grounds for dismissal, the aforesaid provision also includes grounds such as "cases where the company's dignity is degraded or social controversy is caused by intentional act or gross negligence," which, in light of the overall purport of the provisions of the collective bargaining agreement and the Rules of Employment, are intended to require that the employee concerned be given an opportunity to explain and that the facts be ascertained before dismissal is effected through disciplinary procedure; and that since the Rules of Employment provide, as one of the grounds for discipline, "a person who frequently commits unauthorized absence without justifiable cause," taking these circumstances together, it must be interpreted that even in a case falling under "unauthorized absence of three days or more," the intent is that disciplinary procedure should be followed, and therefore the dismissal in this case, effected without such procedure, is null and void. The court below further held that, since the disciplinary dismissal of the Plaintiff is void, the employment relationship between the Defendant company and the Plaintiff still validly continues; however, since the Plaintiff, having been sought by the investigative authorities, remained in hiding and was detained in November 1991, and was released from prison only on April 28, 1992, the Plaintiff was unable to render labor to the Defendant company until that time due to his own circumstances, and therefore the portion of the wage claim from the date of dismissal to the date of release from prison is without merit, and the Defendant company is obligated to pay the Plaintiff the equivalent of wages only from May 1, 1992, until the Plaintiff's reinstatement.
(2) Where a specific ground falls under both disciplinary dismissal grounds and ordinary dismissal grounds as provided in a collective bargaining agreement or Rules of Employment, or even where it falls only under disciplinary dismissal grounds but not under ordinary dismissal grounds, it is lawful and within the discretion of the employer, to the extent not contrary to Article 27, Paragraph 1 of the Labor Standards Act, to choose ordinary dismissal, which is more favorable to the employee, without relying on the provisions or form of disciplinary dismissal on that ground.
However, unless there are special circumstances such that dismissal would be considered a matter of course even without affording the employee an opportunity to make a defense, where a ground for disciplinary dismissal also falls under a ground for ordinary dismissal, even if the method of ordinary dismissal is adopted, the procedures prescribed for disciplinary dismissal are additionally required; furthermore, disciplinary procedure may not be omitted under the pretext of effecting an ordinary dismissal for a ground constituting a disciplinary dismissal ground, because doing so could result in the purport of the relevant provisions guaranteeing procedural protection being circumvented, thereby causing instability in the employee's status.
Examining the evidence relied upon by the court below in this case based on the record, the court below's finding and determination that "unauthorized absence of three days or more" is to be regarded as a ground for disciplinary dismissal requiring the prescribed disciplinary procedure is correct, and even if, as argued in the grounds of appeal, the Defendant company applied Article 41 of the Rules of Employment, which provides for ordinary dismissal grounds, to the aforesaid disciplinary dismissal ground and thereby effected an ordinary dismissal of the Plaintiff, the Defendant company was nevertheless required to go through disciplinary procedure, and therefore the Defendant company's dismissal in this case, which omitted such procedure, is void. Accordingly, the determination of the court below is justified, and it cannot be said that there is an error of law in the judgment below due to misunderstanding of the legal principles concerning dismissal as argued in the grounds of appeal. This ground of appeal is without merit.
B. As to the second ground
It is the established precedent of this Court (see Supreme Court Decisions 85Da375, 85Dagat1591 delivered on July 8, 1986; 92Da18542 delivered on September 25, 1992; 92Da49935 delivered on October 22, 1993, etc.) that, where a collective bargaining agreement or the like provides that a special procedure is required for disciplinary action, such procedure constitutes a requirement for the validity of the disciplinary disposition taken by the employer, regardless of whether substantive grounds for discipline exist or whether the disposition constitutes an unfair labor practice. The argument to the contrary is merely an independent view and is without merit.
2. As to the grounds of appeal by the Plaintiff.
A. As to the first ground
Where an employer's dismissal of an employee is void, the employee, notwithstanding that the employment relationship validly continues, has been unable to render labor due to a cause attributable to the employer, and therefore may claim payment of wages, which constitute the counter-performance that the employee would have received had he rendered labor during that period, pursuant to Article 538, Paragraph 1 of the Civil Act (민법) (see Supreme Court Decisions 87Dagat2132 delivered on May 23, 1989; 90Dagat25277 delivered on June 28, 1991; 92Da39860 delivered on December 8, 1992; 90Da8763 delivered on March 31, 1992). However, where a state of factual impossibility of employment would have arisen even in the absence of dismissal, or where the employer discontinued business for a justifiable cause, the failure to render labor is not due to a cause attributable to the employer, and therefore wages cannot be claimed for that period.
According to the reasoning of the judgment below, the Plaintiff had been evading the investigative authorities even before the dismissal in this case, was detained in November 1991, and was released from prison on April 28, 1992; thus, from the time of the dismissal in this case until his release from prison, the Plaintiff was, from the outset, in a position where he could not render labor, and therefore the issue of the employer's delay in accepting performance could not arise. Accordingly, it cannot be said that the court below's rejection of the Plaintiff's wage claim for that period constitutes an error of law, affecting the judgment, due to misunderstanding of the legal principles on impossibility of performance and delay in acceptance of performance. This ground of appeal is without merit.
B. As to the second ground
The matters that the base pay applicable from April 1992 was increased by an additional 750 won as a result of renegotiation, and that other employees actually worked overtime after May 1, 1992, are both matters for which the Plaintiff bears the burden of proof, and it cannot be found that there was a duty to elicit clarification (석명의무) as argued in the grounds of appeal in this case. This ground of appeal is also without merit.
3. Therefore, all appeals are dismissed, and the costs of appeal are to be borne by each party, this judgment being rendered as stated in the Order by the unanimous opinion of the Justices participating.
Supreme Court Justice Jeong Gwi-ho (Presiding Justice), Kim Seok-su, Lee Don-hui, Lee Im-su (Justice in Charge)