[Plaintiff, Appellee]
[Defendant, Appellant] Korea Tacoma Shipbuilding & Industries Co., Ltd. (in reorganization), Litigation Counsel Attorney Oh Jang-hee
[Lower Court Judgment] Busan High Court Decision 92Na8095 rendered November 25, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
We examine the grounds of appeal.
According to the reasoning of the judgment below, the court below found, based on the evidence presented, that although the labor union filed an objection within the lawful period against the disciplinary dismissal disposition against the Plaintiff, Korea Tacoma Shipbuilding & Industries Co., Ltd. (in reorganization) (hereinafter “the Company in Reorganization”) belatedly convened the Personnel Committee to review the said objection at 14:00 on September 6, 1990, approximately six to seven months after the objection was filed and while this lawsuit was already pending, without giving prior notice to the Plaintiff or the labor union, such that the Personnel Committee meeting was held without the attendance of the Plaintiff or the labor union representative; and on this basis the court below rejected the portion of the entries in Defendant’s Exhibit No. 9-2 (Report on Convening of the Personnel Committee) that were inconsistent with this finding (namely, the portion concerning the Plaintiff’s attendance as the person subject to discipline and his final statement).
However, Defendant’s Exhibit No. 9-2 is a document recording the drafting of the plan to convene the Personnel Committee in response to the objections filed by six persons, including the Plaintiff, against the Company in Reorganization’s disciplinary measures, and recording that at the Personnel Committee meeting thus convened, opinions concerning the objections were heard from the objecting parties, including the Plaintiff, and from the labor union’s observer (who appears to have represented the labor union). The Plaintiff has disputed this documentary evidence only by asserting lack of knowledge, and the court below itself has acknowledged its admissibility as evidence. According to the record, the Plaintiff has presented no rebuttal evidence whatsoever regarding the fact, as stated in the said documentary evidence, that the Plaintiff and the union representative attended the Personnel Committee meeting and stated their opinions concerning the objection; therefore, the entries in the said documentary evidence on this point appear to be credible (this is made even clearer by the contents of the minutes of the Personnel Committee meeting attached by the Defendant to its appellate brief).
Nevertheless, the court below rejected part of the entries in the said documentary evidence without any rebuttal evidence or reasonable explanation, which constitutes a violation of the rules of evidence. Accordingly, the argument pointing out this error has merit.
However, Article 42, Paragraph 4 of the collective bargaining agreement concluded between the Company in Reorganization and the Company’s labor union on September 7, 1987 provides that if a union member or the union has an objection to the Company’s personnel decision, the objection may be raised within 20 days from the date of receiving notice of the decision, and that once an objection is raised, the Company shall allow the union member concerned and the union representative to attend and give a full explanation, and shall notify the decision in writing within seven days (the said collective bargaining agreement is stated to be valid for two years from the date of its conclusion, and if negotiations for renewal of the agreement fail to reach agreement after the expiration of the agreement period, the agreement shall continue to be effective for three months, and the normative effect of the agreement shall persist; accordingly, Article 42 and other provisions concerning personnel matters and dismissal of union members must be regarded as having normative effect, and therefore such provisions remain effective even after the expiration of the agreement’s validity period, until a new agreement is concluded). Further, Article 60, Paragraph 4 of the Company in Reorganization’s Rules of Employment provides that a person who considers a disciplinary disposition unjust or excessive may appeal to the Personnel Committee, provided that the person must comply with the determined disposition until a decision on the appeal is rendered, and that an appeal may be filed only once. Since a disciplinary disposition is one form of personnel decision, the objection procedure provisions of the collective bargaining agreement must also apply to the appeal procedure for disciplinary dispositions as provided in the Rules of Employment, and where an objection is filed pursuant to the collective bargaining agreement against a disciplinary disposition, this must be regarded as including the appeal provided for in the Rules of Employment. Where such a lawful objection is filed, the Company in Reorganization must allow the person subject to the disciplinary disposition and the labor union representative to attend and give a full explanation, and, in principle, must notify the decision in writing within the prescribed period from the date the objection is received, or at least within a reasonable period.
This is because the purpose of the provision requiring, under the collective bargaining agreement, that the person subject to discipline be given an opportunity to explain in the above objection procedure concerning a disciplinary disposition, and of setting a short deadline of within seven days for the decision thereon, is not only to enable the Personnel Committee to hear the opinion of the person concerned once again in relation to the disciplinary disposition so as to render a prudent disciplinary decision, but also to promptly finalize the disciplinary procedure concerning the person concerned so as to swiftly resolve the worker’s unstable status (see this Court’s Decision 87Daka1187, rendered September 22, 1987).
Given this, where a lawful objection has been filed against a disciplinary disposition, the Company in Reorganization must, absent special circumstances such as an objective reason making it impossible to convene the Personnel Committee, or a delay in the objection procedure caused for the benefit of the person subject to discipline or attributable to his own fault, convene the Personnel Committee within the prescribed period, or at least within a reasonable period, and render a decision either upholding, revoking, or modifying the original disciplinary decision.
Accordingly, as found by the court below, where a lawful objection was filed against the disciplinary disposition imposed on the Plaintiff, but the Company in Reorganization, in the absence of any such special circumstances, allowed more than three months to pass without convening the Personnel Committee, and only belatedly convened the Personnel Committee to consider the objection approximately six to seven months after the date the objection was filed—after the Plaintiff, as found by the court below, filed the instant lawsuit seeking invalidation of the disciplinary disposition—and rendered a decision upholding the original disciplinary decision as it stood, then even if the Plaintiff and the union representative attended that Personnel Committee meeting and stated their opinions, this cannot be regarded as a lawful objection procedure or appeal procedure serving as a remedy against the original disciplinary disposition. The argument that the Company in Reorganization was unable to promptly convene the review Personnel Committee because the Company’s normal operations were paralyzed due to the labor union’s fierce strikes and other collective actions is not only an assertion that was not raised up through the proceedings below, but also cannot be accepted based on the record, and is therefore without merit.
While the court below erred, as noted above, in holding that the Plaintiff and the union representative were deprived of the opportunity to give an explanation because they did not attend the Personnel Committee meeting convened in response to the objection, insofar as the said objection procedure or appeal procedure regarding the Plaintiff (which the court below and the Defendant’s litigation counsel refer to as a “reconsideration procedure”) cannot be regarded as a lawful procedure serving as a remedy against the original disciplinary disposition, the fact that the Plaintiff and the union representative attended the Personnel Committee meeting and stated their opinions cannot, by itself, cure the decision of the said Personnel Committee so as to render it lawful. Therefore, the court below’s holding, to the same effect, that the disciplinary dismissal of the Plaintiff is invalid due to the above procedural defect, is correct in its conclusion, and there is no error of misapprehension of the law concerning the disciplinary reconsideration procedure and the effect of disciplinary dismissal.
In conclusion, the appeal is without merit and is hereby dismissed, and the costs of the appeal are to be borne by the losing party. It is so decided by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Yoon Young-chul (Presiding Justice), Kim Sang-won, Park Man-ho, Park Jun-seo (Justice in Charge)