[Order]
The judgment below is reversed and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. As to Ground No. 1
According to the reasoning of the judgment below, the court below, having cited the reasoning of the first instance judgment which found that Article 52 of the collective agreement (단체협약) of the Defendant Company specifically enumerates ten grounds for dismissal and Article 53 specifically enumerates eight grounds for disciplinary action, compared the above provisions with the provisions concerning grounds for dismissal set forth in Article 49 of the Defendant Company's Rules of Employment (취업규칙) (effective November 1, 1985) in force at the time the above collective agreement was drafted (consisting of 14 items), and found that Articles 52 and 53 of the collective agreement, while incorporating most of the grounds for dismissal under Article 49 of the Rules of Employment and dividing them into grounds for dismissal under Article 52 and grounds for disciplinary action under Article 53 of the collective agreement, strengthened the requirements for grounds for dismissal under Article 52 and provided for them more specifically (for example, while Article 49, Item 5 of the above Rules of Employment lists the establishment of a criminal offense as one ground for dismissal, Article 52, Item 8 of the above collective agreement provides as a ground for dismissal only where a person has received a sentence of imprisonment or greater due to a legally prescribed accident), and that Article 54 provides only warning, reprimand, wage reduction, and suspension from driving duty as types of disciplinary action. Gathering together the content and purport of each of these provisions, the court below determined that even if a matter constitutes a ground for dismissal under the Defendant Company's Rules of Employment, if it does not fall under the grounds for dismissal set forth in Article 52 of the above collective agreement, disciplinary dismissal cannot be carried out on that basis; and further, that it is reasonable to view that where a matter falls under the grounds for disciplinary action set forth in Article 53 of the above collective agreement, only the disciplinary measures set forth in Article 54—namely warning, reprimand, wage reduction, and suspension from driving duty—may be imposed, and disciplinary dismissal may not be carried out. On this basis, the court below found that the falsification of the resume, mere poor attendance, negligence in performance of duties, and further, the act of refusing the Defendant Company's driving assignment order and failing to fill the LPG tank, which the Defendant Company cited as one of the grounds for dismissing the Plaintiff, were not among the grounds for dismissal prescribed in Article 52 of the above collective agreement, and therefore determined that the disciplinary dismissal of the Plaintiff on these grounds was unlawful.
However,
corporate order is indispensable for the existence of an enterprise and the smooth operation of its business, and accordingly, an employer may, to the extent necessary and reasonable for establishing and maintaining such corporate order, and to the extent not in conflict with relevant statutes such as the Labor Standards Act (근로기준법), enact Rules of Employment regulating acts of employees that violate corporate order (see Article 94, Item 10 of the Labor Standards Act). Providing, in the Rules of Employment (including disciplinary regulations, personnel regulations, service regulations, etc. having the nature of Rules of Employment), for grounds for dismissal or other disciplinary action with respect to acts of employees related to corporate order other than those acts of violation of corporate order regulated by the collective agreement, originally falls within the authority of the employer. Therefore, unless the collective agreement explicitly provides that dismissal must be governed by the collective agreement and that dismissal may not be effected pursuant to the Rules of Employment, or explicitly provides that an employee may not be dismissed for reasons other than those prescribed in the collective agreement, thereby expressly requiring that the grounds and procedures for dismissal of an employee be governed by the collective agreement, or unless the provisions of the collective agreement and those of the Rules of Employment, etc. are in conflict with each other as to the same grounds or procedures for disciplinary action, the employer may prescribe new grounds for dismissal in the Rules of Employment and may dismiss an employee based on such grounds for dismissal (see this Court's Decisions 92Nu13035, decided January 15, 1993, and 92Da48697, decided April 27, 1993, etc.), and even if the collective agreement specifically enumerates grounds for dismissal separately from grounds for disciplinary action other than dismissal, it cannot be said that providing different grounds for dismissal in the Rules of Employment is contrary to the collective agreement.
Looking back at the present case, the Defendant Company's collective agreement contains no explicit provision requiring that dismissal of an employee be based only on grounds prescribed in the collective agreement. Further, while Article 3 of the collective agreement provides that "the standards set forth in this Agreement shall take precedence over the Company's Rules of Employment and other regulations, and any individual labor contract that falls short of or conflicts with the standards of this Agreement shall be null and void, and the void portion shall be governed by the standards of this Agreement," this provision merely reflects the purport of Article 97, Paragraph 1 of the Labor Standards Act, which provides that Rules of Employment may not conflict with the collective agreement applicable to the relevant place of business, and Article 36, Paragraph 1 of the Trade Union Act (노동조합법), which provides that any portion of the Rules of Employment that violates the standards concerning working conditions or other treatment of employees prescribed in the collective agreement shall be null and void—namely, that where the provisions of the collective agreement and those of the Rules of Employment, etc. conflict with each other as to the same grounds or procedures for disciplinary action, the provisions of the collective agreement shall take precedence. Article 42, Paragraph 2 of the collective agreement means that all personnel matters shall be determined in accordance with the decisions of the Disciplinary and Reward Committee (상벌위원회) prescribed in the collective agreement, and cannot be construed as meaning that personnel matters concerning an employee, including dismissal, must be based on grounds prescribed in the collective agreement. Furthermore, the ground stated as one of the grounds for dismissal in Article 49 of the Defendant Company's Rules of Employment (effective from November 1, 1985) in force at the time of the disciplinary dismissal in this case—namely, "any person who falsely states matters in his/her resume or conceals his/her personal history"—does not appear to correspond to or be related to any ground for dismissal or disciplinary action prescribed in the above collective agreement, and therefore it cannot be said that the portion of the Rules of Employment providing for this as a ground for dismissal is contrary to the collective agreement. If so, the judgment below, which held that the Plaintiff could not be disciplinarily dismissed on the ground of false statement of career history in the resume—a ground for dismissal prescribed in the above Rules of Employment, which does not appear to be contrary to the Defendant Company's collective agreement—erred in misunderstanding the legal principles concerning the relationship of validity between the collective agreement and the Rules of Employment, and thereby erroneously found the grounds for dismissal, and it is clear that this error affected the judgment.
Further, the Plaintiff's act of failing to comply with the driving assignment order on October 3, 1990, and the Plaintiff's act, while operating taxi Gyeonggi 1-Ha-1814 on January 6, 1991, of failing to fill the LPG tank when garaging the taxi due to a vehicle malfunction, clearly fall under the ground for dismissal of "insubordination to work orders" prescribed in Article 49, Item 4 of the Rules of Employment as seen above. However, since Article 53, Item 1 of the above collective agreement provides for the same matter under the ground of "a person who fails to comply with a legitimate instruction," treating it solely as a ground for disciplinary action other than dismissal, such ground alone cannot independently serve as a ground for dismissal; however, where other grounds for dismissal exist, it is permissible to consider this ground together with such other grounds in combination as grounds for dismissal.
Accordingly, the argument disputing this point is well-founded.
2. As to Ground No. 2
According to the reasoning of the judgment below, it is clear that the court below rejected the evidence presented in support of the allegation that the Plaintiff embezzled income funds, and, finding no other evidence to establish this, rejected the Defendant's assertion in this regard. Therefore, the argument that the court below failed to render a determination on this point is without merit.
3. Therefore, Ground of Appeal No. 1 is accepted, and the judgment below is reversed and the case is remanded to the court below. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Presiding Justice Jeong Gwi-ho
Justice Bae Man-woon
Justice Kim Ju-han (Presiding Reporter)
Justice Kim Seok-su