[Plaintiff, Appellee]
[Defendant, Appellant] Bowon Oil Tank (普元油槽) Co., Ltd., Attorney Seo Yong-eun, Litigation Representative
[Judgment Below] Seoul High Court Judgment 92Na56706, decided June 18, 1993
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
1. Determination on Ground No. 2 of the Defendant's Litigation Representative's grounds of appeal.
The court below found the following facts: The Plaintiff joined the Defendant company, which was a subcontractor for oil transportation for three companies including Honam Oil Refinery Co., Ltd., SK Corporation (Yukong Co., Ltd.), and Sebang Oil Co., Ltd., on December 8, 1988, and worked as a driver at the Defendant company's Incheon business office. On March 16, 1990, upon receiving a call that a friend's father had passed away, and in order to finish the oil delivery to Miwon Co., Ltd. that had been assigned to him for the following day early and go to pay respects at the funeral during the daytime, the Plaintiff came to work at the Defendant company's Incheon business office at around 01:35 on March 17, 1990, and drove out the tank truck (vehicle registration number omitted) without prior permission from the branch manager. At around 01:45, upon arriving at the Incheon oil storage depot of Honam Oil Refinery Co., Ltd. and entering the depot premises to load bunker C oil onto the tank truck, the Plaintiff negligently struck the movable roof structure installed at the depot with the front of the tank truck, causing damage amounting to 109,000 won at market price. The Plaintiff then drove the tank truck loaded with the bunker C oil and arrived at Miwon Co., Ltd. located in Banghak-dong, Dobong-gu, Seoul at around 04:15, where he made an excuse to the person in charge of the materials department of that company, a non-party, that he had to go handle the aforementioned accident, and begged them to conduct the inspection of the bunker C oil even though it was not normal working hours, and had the oil received. In response, Honam Oil Refinery Co., Ltd. sent an official document to the Defendant company around March 19, 1990, demanding compensation for the damage caused by the above accident, and as a sanction for the accident, suspended the Plaintiff's access to the above oil storage depot for one week from March 18 to March 24, while also demanding that thorough measures be taken to prevent recurrence of such an incident. Miwon Co., Ltd. also protested around that time against the request for late-night oil inspection made without prior consultation, and demanded prevention of recurrence of such an incident. The court below further found that Article 39 of the Defendant company's collective bargaining agreement (단체협약) sets forth grounds for dismissal, and that Article 39 lists 11 grounds for dismissal, including in item 1 "a person recognized by the union president as having poor work performance and showing no sign of repentance" and in item 3 "a person who intentionally causes a serious accident, thereby causing damage to the company," while also providing that dismissal may not be made on any grounds other than those enumerated above.
Having made the above findings, the court below determined that, even though the Plaintiff drove the vehicle without authorization and caused an accident, thereby causing damage to the Defendant company and causing the Defendant company to receive strong protests and reprimands from the aforementioned non-party companies, thereby significantly damaging the Defendant company's reputation, this alone, even taking into account the fact that the Plaintiff had caused accidents on two prior occasions, is insufficient to find that the Plaintiff intentionally caused the above accident. Therefore, the court below determined that this does not constitute grounds for disciplinary dismissal under Article 39, item 3 of the collective bargaining agreement, nor does it constitute any other ground for dismissal under Article 39 of the collective bargaining agreement.
Upon examination of the relevant evidence and the record, the above findings and determination of the court below are found to be justified and acceptable. Moreover, even if, as argued in the grounds of appeal, the Defendant obtained the consent of the labor union president in disciplinarily dismissing the Plaintiff, this cannot be viewed as making the Plaintiff's conduct fall under the grounds for disciplinary dismissal under Article 39, item 1 of the collective bargaining agreement. Furthermore, even if there were no procedural defects in the disciplinary dismissal as prescribed by the collective bargaining agreement and the employment rules, as argued in the grounds of appeal, this cannot be viewed as meaning that the disciplinary action falls within the private autonomy of the enterprise as an exercise of the employer's inherent disciplinary authority. Therefore, the argument that the judgment below erred in its assessment of evidence and misapprehended the legal principles concerning abuse of disciplinary authority and the private autonomy of enterprises cannot be accepted.
2. Determination on Ground No. 1 of the same grounds of appeal.
As argued in the grounds of appeal, "justifiable cause" under Article 27, Paragraph 1 of the Labor Standards Act (근로기준법), in the case of disciplinary dismissal, refers to circumstances attributable to the employee that are of such a nature that, in light of common social norms, the employment contract cannot be continued. However, where the grounds for disciplinary dismissal of an employee are exhaustively enumerated in a collective bargaining agreement or employment rules, disciplinary dismissal may not be made on any ground other than those so enumerated (see this Court's Judgment 91Da27518, decided May 12, 1992; Judgment 91Da27556, decided September 8, 1992, etc.). In the same vein, the determination of the court below that the Defendant company's disciplinary dismissal of the Plaintiff in this case was made without grounds and is therefore void is found to be justified and acceptable, and it cannot be said that the judgment below erred in its understanding of the legal principles concerning "justifiable cause" under Article 27, Paragraph 1 of the Labor Standards Act, as argued in the grounds of appeal. Therefore, this argument is also without merit.
3. Determination on Ground No. 3 of the same grounds of appeal.
Wages received by an employee who, having been dismissed due to a cause attributable to the employer, worked at another workplace during the period of dismissal, constitute a benefit obtained from being released from one's own obligation as prescribed in Article 538, Paragraph 2 of the Civil Act (민법), and accordingly, the employer may deduct such benefit (so-called "interim income") when paying wages for the period of dismissal to the employee. However, Article 38 of the Labor Standards Act, in order to guarantee the employee's basic livelihood, provides that where an employer suspends business operations due to a cause attributable to the employer, the employer shall pay the relevant employee an allowance of not less than 70/100 of the average wage during the period of suspension. The term "suspension of business" (휴업) under this provision includes cases where an employee, despite having the intent to provide labor in accordance with the labor contract, is unable to provide labor against his or her will. Therefore, among the amount of wages that the employee could have received, the amount within the scope of the suspension allowance under Article 38 of the Labor Standards Act may not be deducted as interim income, and only the amount exceeding the suspension allowance may be deducted as interim income. This is the view adopted in this Court's precedents (see Judgment 90Daka25277, decided June 28, 1991; Judgment 90Da18999, decided December 13, 1991, etc.).
The determination of the court below, which appears to have taken the same view as the above, is found to be justified and acceptable. Furthermore, the argument that, since the Plaintiff also received wages from the non-party Geukdong Transportation Co., Ltd. during the period of dismissal, such interim income should also be deducted from the amount of wages to be paid to the Plaintiff, is premised on new facts that were not asserted in the court below. Therefore, the argument that the judgment below erred in its understanding of the legal principles under Article 538, Paragraph 2 of the Civil Act cannot be accepted either.
4. Therefore, the Defendant's appeal is dismissed, and the costs of the appeal are to be borne by the Defendant, the losing party. This judgment is rendered as set forth in the Order, with the unanimous agreement of the participating Justices.
Justice Ahn Yong-deuk (Presiding Justice), Ahn Woo-man, Kim Yong-jun (Justice in charge), Cheon Gyeong-song