[Plaintiff, Appellant]
[Defendant, Appellee] Keumsung Sanjeon Co., Ltd., Attorney Seok Yong-jin, Litigation Representative
[Judgment Below] Busan High Court Judgment 91Na14888, rendered April 29, 1993
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
As to Ground of Appeal No. 1
Upon examination of the record, the court below's findings and determinations concerning the facts of the Plaintiff's misconduct that the Defendant relied upon as grounds for disciplinary action, and concerning the disciplinary procedure that the Defendant followed in the disciplinary dismissal of the Plaintiff in this case, are justified, and there is no illegality therein such as misapprehension of facts due to violation of the rules of evidence, incomplete deliberation, or inadequate reasoning as argued in the grounds of appeal. This ground of appeal is without merit.
As to Grounds of Appeal Nos. 2 and 3
The collective agreement concluded between the Defendant company and the labor union provides for grounds for dismissal in Article 29 and for the types of disciplinary action in Article 33, but does not specifically provide for the composition of the disciplinary committee or the disciplinary procedure. The Defendant company's employment rules (취업규칙) separately provide, among the types of disciplinary action, for grounds for reprimand, wage reduction, suspension, and demotion (Article 141), and grounds for recommended resignation and disciplinary dismissal (Article 142); Article 146 provides that disciplinary action against employees shall be taken by the president following resolution of the disciplinary committee; Article 147 divides the disciplinary committee into the head office disciplinary committee and the factory disciplinary committee, and provides that the factory disciplinary committee shall be composed of the resident director or factory manager of each factory as chairperson, together with several department heads or section chiefs appointed by the chairperson, and shall deliberate and resolve on employees excluding those of section-chief rank or above (Paragraph 2); that a resolution of the disciplinary committee shall be adopted upon the attendance of a majority of the members and the consent of a majority of the members present (Paragraph 3); and Article 148 provides that the disciplinary committee may hear statements from the parties concerned in its deliberation and determination.
On the other hand, the Operating Standards of the Disciplinary Committee of the Defendant company's Changwon Factory (이하 "운영기준", hereinafter "Operating Standards"), established pursuant to Article 146 of the Defendant company's employment rules, provide in detail for matters concerning the operation of the Changwon Factory disciplinary committee, including the composition of disciplinary committee members, the appointment and term of disciplinary committee members, deliberation and resolution, and reexamination procedures. In particular, with respect to disciplinary action against workers who are production (technical) employees, the Operating Standards provide that the union branch chief shall be an ex officio member, and that a quorum of the disciplinary committee shall be constituted by the attendance of all ex officio members and a majority of the other members—provisions that differ from the content of the employment rules—and further provide for subdivided grounds for disciplinary action along with the corresponding types of disciplinary action.
Whatever its title, any set of rules containing the content of service regulations applicable to a workplace and standards governing working conditions such as wages shall be deemed employment rules (취업규칙) under Article 94 of the Labor Standards Act (근로기준법) (see this Court's Judgment 91Da30828, rendered February 28, 1992). The Operating Standards discussed above set forth in detail the abstract disciplinary procedure provisions of Article 146 of the above employment rules, which constitute part of the working conditions, and therefore must be regarded as forming part of the employment rules applicable to the Defendant company's Changwon Factory. Moreover, the above employment rules were amended and took effect from February 1, 1988, whereas the Operating Standards took effect later, from March 6, 1989; and in light of the fact that the Operating Standards provide, in part, differently from the above employment rules—which apply to all of the Defendant company's workplaces—with respect to the disciplinary procedure for production employees of the Defendant company's Changwon Factory, who have different job duties and work locations, the disciplinary procedure set forth in the Operating Standards must be applied preferentially in disciplining the Plaintiff, who is a production employee. Accordingly, the portion of the judgment below that appears to characterize the Operating Standards as a subordinate rule to the employment rules is erroneous.
However, the provision in the Operating Standards that, in disciplining a worker who is a production employee, the union branch chief shall be an ex officio member, and that a quorum of the disciplinary committee shall be constituted by the attendance of all ex officio members and a majority of the other members, is to be construed as intended to provide an opportunity for the union branch chief, representing the production workers, to speak in defense of the person subject to discipline by having him attend the disciplinary committee. According to the findings of the court below, Non-party ○○○, who was the union branch chief of the Defendant company's Changwon Factory at the time, was notified three times of the holding of the disciplinary committee meeting concerning the Plaintiff, but merely asserted that the Plaintiff's detention made it difficult for him to attend the disciplinary committee, and unilaterally requested postponement without attending the disciplinary committee. Given these circumstances, even though the date of the Plaintiff's release from detention was uncertain at the time, and even though, as will be discussed below, the attendance of the person subject to discipline at the disciplinary committee is not prescribed as a requirement for the validity of the disciplinary procedure, the mere assertion of the above circumstance by the ex officio member ○○○ as grounds for his non-attendance can only be viewed as a waiver of his attendance (see this Court's Judgment 92Da32074, rendered December 8, 1992). Furthermore, even if ○○○ was, as argued in the grounds of appeal, extremely busy at the time for the reasons stated, inasmuch as the reason the intervenor put forward for requesting postponement of the disciplinary committee was as stated above, there is no basis for concluding otherwise in recognizing that ○○○ waived his attendance at the disciplinary committee. This ground of appeal is also without merit.
As to Ground of Appeal No. 4
As found by the court below, the Operating Standards provide that the personnel department shall prepare the agenda to be submitted to the disciplinary committee based on a fact-finding report in the format prescribed by the Operating Standards, the person's own letter of repentance, or a separate investigation report, and shall submit a request for convening the disciplinary committee.
However, as noted above, Article 148 of the employment rules provides that the disciplinary committee may hear statements from the parties concerned in its deliberation and determination, and the Operating Standards provide that, where necessary, the person subject to review and the person reporting the facts may be summoned for investigation (Item 8-4). Since neither the employment rules nor the Operating Standards mandatorily require that the person subject to discipline be given an opportunity to appear or make statements, it cannot be construed, as argued in the grounds of appeal, that the submission of a letter of repentance by the person himself—intended to allow the person subject to discipline to explain the alleged disciplinary violation—must necessarily be obtained in writing. Rather, it is more reasonable to construe the purpose of submitting a letter of repentance as being to inform the disciplinary committee that the person subject to discipline is remorseful regarding the alleged violation, so that this may be taken into account in determining the severity of the disciplinary action. Therefore, even if the disciplinary resolution was made without the submission of a letter of repentance under the Operating Standards—which is intended to serve as material to be considered in determining the severity of discipline—it cannot be said that the disciplinary resolution is invalid due to a procedural violation on that ground. This ground of appeal is also without merit.
As to Ground of Appeal No. 5
The Operating Standards provide that a finalized disciplinary matter shall be notified to the person concerned by means of a disciplinary notice within 24 hours from the date of approval. As lawfully found by the court below, although the Plaintiff was at the time detained and incarcerated in prison, the Defendant sent the dismissal notice to the Plaintiff on September 8, 1989 to the Plaintiff's hometown residence at (omitted), Gimhae-gun, Gyeongsangnam-do. On the other hand, Article 10 of the Operating Standards provides that an employee who objects to a notified disciplinary matter must submit a request for reexamination within 24 hours of receiving the notice. The Plaintiff, having been released from prison on September 21 of the same year and having thereby learned of the dismissal, did not request reexamination within the prescribed period thereafter; moreover, the Plaintiff admits that, even though the Defendant offered on October 12 of the same year to give him an opportunity for reexamination, he did not even request reexamination and instead filed the instant lawsuit.
Given these circumstances, even though the Defendant was at fault in sending the dismissal notice to the Plaintiff's hometown residence rather than to the prison where the Plaintiff was then detained, in this case where the Plaintiff, after his release, knew of the dismissal but did not request reexamination within the prescribed period thereafter, and, moreover, did not even request reexamination after the Defendant company offered to grant him an opportunity for reexamination, but instead filed the instant lawsuit, the argument that the Defendant deprived the Plaintiff of the opportunity to request reexamination cannot be accepted.
As to Ground of Appeal No. 6
As lawfully determined by the court below, even if the Defendant company was in a state of labor-management dispute, the Plaintiff, as a union delegate, cannot be said to have had authority to control the entry of administrative staff employees attempting to enter the company to perform civil defense training duties. Therefore, even if the said administrative staff employees refused the Plaintiff's attempt to block their entry, the Defendant company cannot be said to have been at any fault with respect to the Plaintiff's act of damaging the glass of the company's front gate guard post with a club on that ground, or with respect to the act of assaulting Non-party 1, an employee of the Defendant company, inflicting upon him injuries such as lacerations to the upper body requiring three weeks of medical treatment, on the ground that Non-party 1 stepped on a banner that had been used during the industrial action and left lying in the corridor of the Defendant company's office, while passing by. It is clear that the Plaintiff's above acts fall under Article 142, Paragraphs 5 and 15 of the above employment rules, which provide for grounds for dismissal, and under Items 12-29 and 12-30 of the Operating Standards. In light of the content of each of the Plaintiff's above acts and the state of labor-management relations at the time of each act, it is recognized that maintaining the employment contract relationship between the Plaintiff and the Defendant company would be so markedly unfair or unreasonable as to warrant dismissal, and the judgment below, which reached the same conclusion, is justified, and there is no illegality of abuse of the right to discipline as argued in the grounds of appeal. This ground of appeal is also without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party, and it is so decided by the unanimous opinion of the participating Justices as stated in the Order.
Justice Park Jun-seo (Presiding Justice), Kim Sang-won, Yoon Young-cheol (Justice in Charge), Park Man-ho