[Plaintiff, Appellant]
[Defendant, Appellee] Daewoo Metal Co., Ltd., Litigation Counsel Attorney Kim Jong-sik
[Judgment Below] Seoul High Court Decision 92Na56782 delivered on August 4, 1993
[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.
1. Upon comparing the evidence relied upon by the court below with the record, the fact-finding of the court below can be sufficiently sustained, and there is no illegality therein, as pointed out in the grounds of appeal, of misapprehending the facts in violation of the rules of evidence. This ground of appeal is without merit.
2.
A transfer or reassignment of an employee may bring about changes in the type and content of the work to be provided by the employee, or in the place of work, and thus may constitute a disposition disadvantageous to the employee; however, in principle it falls within the authority of the employer (the person holding personnel authority), and accordingly, a considerable degree of discretion must be recognized insofar as it is within the scope necessary for business operations. Such a disposition cannot be deemed invalid unless there exist special circumstances, such as its violating Article 27(1) or Article 105 of the Labor Standards Act (근로기준법), or constituting an abuse of rights (see this Court's Decision 91Nu5204 delivered on January 21, 1992).
Further, whether a transfer disposition falls within the scope of a legitimate exercise of personnel authority must be determined by weighing the business necessity for ordering the transfer against the disadvantage in the employee's living conditions resulting from the transfer, and by examining whether the procedures required by the principle of good faith, such as consultation with the employee concerned, were followed in the course of making the transfer disposition (see this Court's Decision 91Da12752 delivered on July 12, 1991).
According to the facts found by the court below, the Plaintiff joined the Defendant company on August 22, 1989, and worked in the Drawing Section of the Production Department located in Factory No. 2. On March 20, 1991, during the morning safety meeting, when the section chief reprimanded an employee for chatting, the Plaintiff protested by pointing his finger at the section chief, throwing the meeting into disorder. On March 23, 1991, during a production meeting, when the department manager gave a negative response to the Plaintiff's question, the Plaintiff repeatedly picked at the manager's words, disrupting the atmosphere of the meeting to the point that it had to be discontinued. The Plaintiff engaged in such conduct disturbing the order of the workplace on several occasions, and his ordinary work attitude was also very poor—he deliberately avoided difficult tasks and was frequently in conflict with his colleagues. As a result, on March 30 of the same year, he was disciplined with a three-month reduction in pay, and on April 2, he was ordered transferred to Extrusion Section No. 1 in Factory No. 1. Harboring dissatisfaction with this, the Plaintiff failed to report to his assigned department for eight days, from April 18 to April 25 of the same year, and on May 1 he was disciplinarily dismissed on the ground of unauthorized absence. Factory No. 1, where Extrusion Section No. 1 is located, is only about two kilometers away from Factory No. 2, where the Drawing Section is located, so that the transfer order did not require the Plaintiff to relocate his residence or cause significant inconvenience in commuting, and did not otherwise add to his living inconvenience; moreover, the work in Extrusion Section No. 1, like his former work, was likewise simple labor.
Given these facts, the business necessity for transferring the Plaintiff was great, whereas the disadvantage to the Plaintiff's living conditions resulting therefrom was practically nonexistent. Although there was a procedural defect in that the transfer disposition was made immediately after the disciplinary action without prior consultation with the Plaintiff, in light of the fact that the disadvantage to the Plaintiff's living conditions caused by the transfer disposition was practically nonexistent, such circumstance alone cannot render the transfer disposition in this case invalid as constituting an abuse of rights.
Furthermore, if the transfer disposition is not invalid, the employee is obligated to comply with it (see this Court's Decision 90Da12366 delivered on September 24, 1991), and even if the employee harbors some doubt as to the legitimacy of the transfer disposition, the means of protest must likewise be appropriate. In this case, the Plaintiff, without complying with the valid transfer disposition and without giving the prior notice required under the rules of employment, failed to report to his assigned department for eight consecutive days. Even accepting the Plaintiff's assertion that he attempted during that period to report to his former department, this constitutes unauthorized absence, and as a means of protest it was excessive and inappropriate. Therefore, it was lawful for the Defendant to disciplinarily dismiss the Plaintiff on the ground of unauthorized absence pursuant to the provisions of the rules of employment and the collective bargaining agreement, and there is no illegality of misapprehension of the applicable law therein. This ground of appeal 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 Justices participating in the decision.
Justice Ahn U-man (Presiding Justice), Kim Yong-jun, Cheon Gyeong-song (Justice in Charge), Ahn Yong-deuk