[Plaintiff, Appellee]
[Defendant, Appellant]
[Judgment Below] Seoul High Court Decision 92Na70832 rendered September 9, 1993
[Order]
1. The part of the judgment below concerning the wage claim, in which the Defendant lost, is reversed, and this part of the case is remanded to the Seoul High Court.
2. The remainder of the Defendant's appeal is dismissed.
3. The costs of the appeal with respect to the dismissed portion shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the first instance judgment as cited by the judgment below, the following facts are found: the Plaintiff, as chairman of the labor union of the Defendant company (hereinafter "the Labor Union"), organized an unlawful demonstration outside the Defendant company and was detained on April 12, 1989 for violation of the Assembly and Demonstration Act (집회및시위에관한법률) and other offenses; he was sentenced by the Incheon District Court on June 21 of that year to one year's imprisonment with two years' suspended execution and released; he was again detained on June 13, 1990 for similar reasons, and on August 29 of that year was sentenced by the same court to one year's imprisonment. In response, the Defendant company, deeming that the Plaintiff's above conduct fell under the grounds for disciplinary action prescribed in the employment rules (취업규칙) and the collective agreement (단체협약), convened a disciplinary committee and decided to discipline the Plaintiff. On September 11, 1990, it notified the Plaintiff, who was then detained at Incheon Prison, of the convening of the disciplinary committee, and on three occasions—the 13th, 19th, and 20th of that month—notified the Labor Union of the convening of the disciplinary committee and urged it to select five union-side disciplinary committee members pursuant to the collective agreement and have them attend. Although Article 55 of the collective agreement, concluded as a result of negotiations between the Defendant company and the Labor Union and effective from January 1, 1990, contained provisions on grounds and procedures for discipline, and paragraph 4 thereof (an apparent clerical error for paragraph 5) provided that "referral to discipline shall be decided by agreement between labor and management," the Labor Union, without reaching or even attempting to reach agreement with the Defendant company on referring the Plaintiff to discipline, objected to referring the Plaintiff, the Labor Union chairman, to the disciplinary committee, and despite being entitled under the collective agreement to select and have attend an equal number of disciplinary committee members as the employer side, denied the legitimacy of the disciplinary committee and did not attend. The Defendant company, with its five disciplinary committee members present, convened the disciplinary committee on September 20 of that year and dismissed the Plaintiff by way of disciplinary action. The court below, having found these facts, held as follows: while personnel authority, including the authority to discipline employees, is inherently part of management rights and belongs exclusively to the employer, a labor union may, in order to check the employer's arbitrary exercise of personnel authority, restrict such authority through negotiation with the employer; and where a collective agreement provides that, in order to discipline an employee who is a union member, agreement must be reached with the labor union, this constitutes a procedural provision restricting the employer's personnel authority by agreement between the employer and the union, and together with the provision imposing a duty to notify the person subject to discipline of the grounds for discipline in advance in order to give that person an opportunity to explain, constitutes a core provision guaranteeing the propriety of the disciplinary procedure. The court below further held that, this being so, if the employer imposes discipline without at all going through the required procedure of reaching agreement with the labor union before referring a union member to discipline, this would result in unilaterally depriving the person to be disciplined and the labor union of the right—granted to them as a result of the labor-management agreement—to have the disciplinary matter reviewed through proper procedure, and would constitute a direct violation of the provision guaranteeing proper procedure in disciplinary action, rendering the disciplinary action void (the court below noted that the situation might be treated differently where the employer sincerely attempted to reach agreement with the labor union regarding referral to discipline, but the labor union unjustly refused to do so, such that referral to discipline was made without agreement being reached). The court below then determined that, since the disciplinary dismissal of the Plaintiff is void, the employment contract between the Defendant company and the Plaintiff remains validly in existence absent other special circumstances, and since the Defendant's failure to receive the Plaintiff's labor was attributable to the Defendant, the Defendant is obligated to pay the Plaintiff ordinary wages from September 20, 1990, the date of dismissal, until reinstatement.
2.
Even though personnel authority in principle belongs to the employer, the employer may, of its own will, place restrictions on that authority; accordingly, where an employer, through a collective agreement concluded with a labor union, has recognized the union's involvement in personnel matters concerning union members, the effect thereof is to be determined in accordance with the purport of the provisions of the agreement (see Supreme Court Decision 92Da18542 rendered September 25, 1992). The judgment below, which is to the same effect, is justified, and Article 55, paragraph 5 of the Defendant company's collective agreement, which provides that referral to discipline shall be decided by agreement between labor and management, cannot be deemed void as infringing upon the essence of personnel authority. This ground of appeal is without merit.
3.
Where the specific content of a personnel-consultation clause provided in a collective agreement or the like requires only that the employer give the labor union an opportunity to present its opinion so that the employer may exercise due care in making a personnel decision, failure to follow that procedure does not affect the validity of the personnel action; however, where the provision requires the employer to obtain the labor union's prior consent or approval, or to discuss the personnel action with the labor union and reach agreement of opinion before taking the personnel action, a personnel action taken without following that procedure is, in principle, void. Even in such a case, however, where there exist special circumstances such as the employee or the labor union having voluntarily waived the prior agreement procedure, the disciplinary action shall be deemed valid (see Supreme Court Decisions 92Da32074 rendered December 8, 1992; 92Da45735 rendered July 13, 1993; 92Da50263 rendered July 13, 1993; and 92Da34926 rendered August 24, 1993). The first instance judgment, as cited by the judgment below, is to the effect that in the present case there are no special circumstances such as the employee or the labor union having voluntarily waived the prior agreement procedure, and thus there is no error in the judgment below of failing to sufficiently examine or of omitting to rule on such special circumstances. The precedents cited in the argument concern facts different from those of the present case and do not constitute appropriate precedent to be applied here. This ground of appeal is without merit.
4. The argument that the defect in the disciplinary procedure in this case was cured by the Labor Union's implicit ratification is not supported by any evidence, and moreover, the Defendant did not raise this argument in the court below. This ground of appeal is without merit.
5.
Where an employer's dismissal of an employee is void, the employee, despite the valid continuation of the employment relationship, has been unable to provide labor due to a cause attributable to the employer; accordingly, the employee may claim payment of wages, the counter-performance that would have been received had labor been provided during that period, pursuant to Article 538, Paragraph 1 of the Civil Act (민법) (see Supreme Court Decisions 87Dakka2132 rendered May 23, 1989; 90Dakka25277 rendered June 28, 1991; 92Da39860 rendered December 8, 1992; and 90Da8763 rendered March 31, 1992). However, where a situation arises in which employment would have been practically impossible even absent the dismissal, or where the employer has discontinued its business for justifiable cause, the failure to provide labor during that period is not attributable to the employer, and wages for that period may not be claimed. According to the reasoning of the judgment below, the Plaintiff was detained on June 13, 1990 and sentenced to one year's imprisonment on August 29 of that year; thus, it appears that the Plaintiff remained in detention for a considerable period even after September 20, 1990, the date from which the court below ordered payment of wages, and during that period of detention the Plaintiff was in a position unable to provide labor. Accordingly, the Plaintiff may not claim wages from the Defendant on the premise that the failure to provide labor during that period was due to a cause attributable to the Defendant.
Accordingly, the court below erred in its understanding of the legal principles concerning payment of wages during the period of dismissal, and this error affected the judgment; thus, this ground of appeal is meritorious.
6. Accordingly, the part of the judgment below concerning the Plaintiff's wage claim, in which the Defendant lost, is reversed, and this part of the case is remanded to the court below; the remainder of the appeal is dismissed; and the costs of the appeal with respect to the dismissed portion shall be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Jeong Gwi-ho (Presiding Justice), Kim Seok-su, Lee Don-hee, Lee Im-su (Justice in Charge)