[Plaintiffs, Appellants]
[Defendant, Appellee] Sampoong Industrial Co., Ltd., Attorney Lee Hee-tae, counsel for the Defendant
[Judgment Below] Daegu High Court Decision 92Na2418 rendered on May 13, 1993
[Order]
All appeals are dismissed.
The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning]
The grounds of appeal are examined.
As to Ground 1
Examining the reasoning of the judgment below in light of the record, the fact-finding of the court below can be affirmed. It is also acceptable that the court below found that Plaintiff 1, in connection with the election of the auditor of the Defendant company's labor union, incited fellow union member employees to leave their workplace without permission during working hours, and committed acts disruptive of discipline by verbally abusing and assaulting the manager of the smelting plant who attempted to investigate the circumstances; and that Plaintiff 2, while absent from work without permission on the ground that the disciplinary dismissal of Plaintiff 1 was unjust, occupied the Pohang district office of the Democratic Party and conducted a hunger strike sit-in demanding the reinstatement of Plaintiff 1, produced and distributed leaflets containing false statements such as that the Defendant company had failed to pay wages, held a rally together with approximately 20 union members entitled "Rally to Condemn Violation of the Collective Agreement and Crush the Conspiracy for Mass Dismissal," marched to the Pohang Local Office of the Ministry of Labor, and sang labor songs there, thereby obstructing business; and that, as a result, Pohang Iron and Steel Co., Ltd. notified the Defendant company, its subcontractor, that it would restrain the assignment of new subcontracted work if the labor dispute continued, and in fact delayed the conclusion of new work contracts, thereby causing the Defendant company to suffer substantial damage — the court below's determination that these acts constituted disruption of workplace order and discipline and obstruction of business is likewise acceptable, and there is no illegality of the kind alleged in the grounds of appeal therein. The court below merely took into account, in judging the legitimacy of the disciplinary dismissal of Plaintiff 2, the fact that Plaintiff 2 was not remorseful about his misconduct; it did not treat this as a ground for the disciplinary dismissal itself. Whether a person subject to discipline is remorseful about the misconduct is one factor relevant to the determination of the appropriate level of disciplinary action, and therefore it cannot be said to be unlawful that the court below took this into account in determining the legitimacy of the dismissal of Plaintiff 2.
Accordingly, this ground of appeal is without merit.
As to Grounds 2 and 3
1.
Whether a violation of the procedures for dismissal prescribed in a collective agreement (단체협약) renders the dismissal void cannot be stated uniformly, and must be determined according to the purpose of the relevant provision. The mere fact that a party was penalized for violating the dismissal procedure prescribed in the collective agreement does not necessarily mean that the private-law effect of the dismissal in question is thereby negated. Even a dismissal in violation of the duty of advance notice of dismissal does not affect the private-law effect of the dismissal, so long as the dismissal is based on a justifiable reason (see this Court's Decision 93Nu4199 rendered on September 24, 1993), and whether or not dismissal allowance was paid likewise does not determine the validity of the dismissal (see this Court's Decision 71Da1400 rendered on August 31, 1971).
Furthermore, where the specific content of a personnel consultation (agreement) clause set forth in a collective agreement, etc., is such that it merely requires the employer to give the labor union an opportunity to present its opinion so that the employer may exercise due care in personnel matters, failure to follow that procedure alone cannot be said to affect the validity of the personnel action; however, where the clause provides that the employer must obtain the consent or approval of the labor union, or must reach agreement with the labor union through discussion before taking personnel action, a personnel action taken without following that procedure must, in principle, be deemed void (see this Court's Decisions 92Da50263 rendered on July 13, 1993, and 92Da34926 rendered on August 24 of the same year, among others).
2.
The authority to reward or discipline employees originally belongs to the Defendant, as the employer. Article 34, Paragraph 1 of the Defendant company's collective agreement (Exhibit A No. 11) expressly states that "the Union acknowledges that the authority over personnel matters such as hiring, dismissal, reassignment, and reward and punishment belongs to the Company," while Paragraph 2 thereof broadly and vaguely provides that personnel matters concerning union officers and the dismissal of union members shall be agreed upon with the Union. In addition, Article 40 provides that even when the Company intends to reduce personnel due to downsizing of the enterprise or other unavoidable reasons, it must notify the Union 60 days in advance and reach agreement with the Union, and that even when temporary closure or permanent closure of business becomes necessary due to natural disaster or other unavoidable reasons making continued operation difficult, the Company must reach prior agreement with the Union — here, too, the term "agreement" is used. Moreover, after the disciplinary committee resolved to dismiss Plaintiff Yoon Jong-gil, when the Defendant company sought the opinion of the labor union, the labor union replied requesting leniency on the ground that the discipline was too harsh (Exhibit B No. 4-1, 2). In light of the overall structure and content of the collective agreement, including these points, it is acceptable that the court below determined that the term "agreement" in Article 34, Paragraph 2 of the collective agreement, which provides that the dismissal of union members shall be agreed upon with the labor union, was not intended to comprehensively restrict the Defendant company's authority over personnel and disciplinary matters by making it subject to the concurrence of the will of both the Defendant company and the labor union; rather, it is reasonable to interpret it as intended, for the purpose of preventing the Defendant company's arbitrary exercise of its personnel or disciplinary authority over union members from impeding the normal activities of the labor union, to ensure fairness in personnel and disciplinary actions by giving the labor union an opportunity to present necessary opinions and to have those opinions taken into reference. The court below's rejection of the Plaintiffs' argument that the disciplinary dismissal of the Plaintiffs violated the labor-management agreement provision concerning the dismissal of union members under the above collective agreement, and was thus void as violating Article 27-2 of the Labor Standards Act (근로기준법), is likewise correct and acceptable. Inasmuch as the meaning of "agreement" under the above collective agreement is to be interpreted in this manner, even if the Defendant did not obtain agreement with the labor union in disciplinarily dismissing the Plaintiffs, that fact alone does not render the disciplinary dismissal void. Accordingly, it cannot be said that the judgment below erred in the legal principles concerning the disciplinary procedure under the collective agreement or in the interpretation of the collective agreement provisions, and it cannot be said that the disciplinary dismissal of the Plaintiffs was void as violating Article 27-2 of the Labor Standards Act or Article 46-3 of the Trade Union Act (노동조합법).
3.
However, under the Labor Standards Act, the duty of advance notice of dismissal is exempted only where continuation of business is impossible due to natural disaster, war, or other unavoidable causes, or where the employee has intentionally caused substantial hindrance to the business or inflicted property damage, and in the latter case attributable to the employee's fault, the approval of the Minister of Labor must be obtained (Article 27-2 of the Labor Standards Act). It cannot be deemed appropriate for the court below to have held that the duty of advance notice of dismissal under Article 27-2 of the Labor Standards Act does not apply in the case of a disciplinary dismissal attributable to the employee's fault; however, since in the present case the dismissal of the Plaintiffs is found to have been based on a justifiable reason, this error does not affect the outcome of this case.
This ground of appeal is also without merit.
Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing parties. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Kim Seok-su (Presiding Justice), Bae Man-un (Justice in charge), Kim Ju-han, Jeong Gwi-ho