[Plaintiff, Appellant]
[Defendant, Appellee]
[Judgment Below]
Daegu High Court Decision 92Na2722, decided October 29, 1992
[Order]
The judgment below is reversed, and the case is remanded to the Daegu High Court.
[Reasoning]
The grounds of appeal are examined.
1. The summary of the facts found by the court below is as follows.
A. The Plaintiff worked as an assembly worker for the Defendant company from June 24, 1987, and on February 7, 1990, was elected chairperson of the Defendant company's labor union. Thereafter, in the course of wage negotiations between labor and management from around April 20, 1990 to around June 7, 1990, the Plaintiff, as union chairperson, was arrested on June 13 of the same year on charges of obstructing the company's business, engaging in illegal work slowdowns and strikes, and leading outdoor rallies and demonstrations. He was sentenced to one year of imprisonment by the Daegu District Court on September 8 of the same year, appealed, and was sentenced on appeal on January 25, 1991 to one year of imprisonment with two years' suspension of execution. He further appealed to the Supreme Court, but the appeal was dismissed on June 26 of the same year, and the judgment became final.
B. Article 23 of the Defendant company's labor-management agreement provides that an employee shall be automatically retired (당연퇴직) when: the employee is absent without leave for five or more days without justifiable cause; the employee reaches retirement age or dies; the employee receives a conviction for a criminal offense; the employee is declared incompetent, quasi-incompetent, or bankrupt; or an employee on leave due to discharge from military service, illness, or injury fails to submit an application for reinstatement within two weeks from the date of recovery.
Article 9, Paragraph 2, Item 3 of the Rules of Employment likewise provides for automatic dismissal (당연면직) in the case of such grounds (which appear to refer to the case of receiving a conviction for a criminal offense).
C. Furthermore, apart from automatic dismissal, the Defendant company's Rules of Employment separately provide, in Article 15, Paragraph 2, Item 1, that disciplinary action may be taken against a person who violates the Rules of Employment; in Item 2, that the types of disciplinary action are warning, reprimand, wage reduction, suspension, and dismissal; and in Item 4, grounds for dismissal that are distinct from the grounds for automatic retirement. Article 25 of the above labor-management agreement likewise provides for the same types of disciplinary action.
D. When the Plaintiff was sentenced on appeal to one year of imprisonment with two years' suspension of execution, the Defendant company convened a personnel committee on January 29, 1991, and, having determined that grounds for automatic retirement under the labor-management agreement and the Rules of Employment had arisen, went through a formal deliberation and resolution, and on the same date notified the Plaintiff that he had been automatically retired.
2. The Judgment of the Court Below
Under the above factual relationship, the court below held as follows. The Defendant company's designation of "receiving a conviction for a criminal offense" as a ground for automatic retirement is because, where an employee commits a crime beyond a mere violation of company rules, is prosecuted, and receives a final conviction, keeping such person as an employee is deemed to harm the company's social reputation and impede the maintenance of corporate order, regardless of whether the crime in question was committed in relation to his duties; moreover, since the misconduct is clear and its degree is substantial, it is reasonable that dismissal need not go through separate disciplinary procedures. In light of the fact that the conviction referred to in that ground is interpreted to presuppose a sentence of imprisonment or a heavier punishment (including suspended sentences), the above automatic retirement provision cannot be deemed unconditionally disadvantageous to the employee and thus invalid. Furthermore, in light of the fact that the Defendant company's Rules of Employment provide for a disciplinary dismissal provision separate from automatic retirement, with different grounds and procedures, the notice of automatic retirement cannot be regarded as a dismissal disposition. Automatic retirement occurs as a matter of course when the relevant ground arises, without any special act of disposition, and the notice given to the Plaintiff was merely a notice of perception (관념의 통지) confirming and informing him of the fact of automatic retirement. Therefore, both an action seeking confirmation of invalidity of dismissal premised on the notice being a dismissal, and an action seeking confirmation of invalidity of a retirement disposition premised on it being an independent disposition distinct from dismissal, lack the interest in seeking such confirmation.
The court below further held that "when a conviction is received," as one of the grounds for automatic retirement, should be interpreted to mean when the conviction becomes final. Therefore, although the Defendant company's notice of automatic retirement, given on January 29, 1991, a few days after the conviction was rendered on appeal, was erroneous, since the appeal was subsequently dismissed by the Supreme Court on June 26 of the same year and the conviction became final, the Plaintiff was automatically retired from the Defendant company on that same date and lost his status as an employee. Accordingly, even if the claim is construed as seeking confirmation of employee status, this would be seeking confirmation of a past legal relationship and would therefore be unlawful. The court below further determined that the Defendant was obligated to pay the Plaintiff wages in the amount of KRW 3,472,010, for the period from January 29, 1991, when the Defendant ceased paying wages to the Plaintiff, until June 26 of the same year, when the Plaintiff was automatically retired.
3. Judgment of this Court
A. Upon consideration, the grounds for termination of an employment contract may be divided into: resignation, which occurs by the employee's intention or consent; dismissal, which occurs contrary to the employee's intention by the unilateral intention of the employer; and automatic extinguishment, which occurs regardless of the intention of either the employee or the employer.
The term "dismissal" as used in Article 27 of the Labor Standards Act (근로기준법) must be interpreted to mean any termination of the employment relationship falling within the second category above, regardless of the name actually used at the workplace in question or the procedure followed.
Therefore, even if the Defendant company designated the occurrence of a certain ground as a ground for automatic retirement and adopted a procedure different from that for ordinary dismissal or disciplinary dismissal, if the employment relationship is unilaterally terminated by the employer regardless of the employee's intention, this must, by its nature, be regarded as a dismissal subject to the restrictions of the Labor Standards Act.
Accordingly, even though the retirement measure taken against the Plaintiff in this case was designated as automatic retirement under the collective agreement or the Rules of Employment, this constitutes a type of dismissal in the sense described above, and it should be viewed that the company merely, for internal purposes, used a different name and procedure in order to distinguish it from ordinary dismissal procedures. Therefore, in order for the retirement measure taken against the Plaintiff in this case to be valid, there must be a justifiable reason as provided in Article 27, Paragraph 1 of the Labor Standards Act, and in the absence of such justifiable reason, an action seeking confirmation of invalidity of the retirement disposition may be brought.
If so, the court below erred in dismissing the action on the ground of lack of interest in confirmation, having regarded the retirement measure taken against the Plaintiff in this case merely as a notice of perception, without proceeding to the merits and determining the legitimacy of the retirement disposition against the Plaintiff.
In this case, regardless of whether the Plaintiff's action is construed as an action seeking confirmation of invalidity of dismissal or as an action seeking confirmation of invalidity of a retirement disposition, both must be regarded as seeking confirmation of invalidity of the above retirement measure, which is a type of dismissal. Therefore, the claim for confirmation of invalidity of the retirement disposition and the claim for confirmation of invalidity of dismissal should not be treated as independent, separate claims.
B. Furthermore, although the provisions of the Rules of Employment and the labor-management agreement (collective agreement) at issue in this case are worded such that an employee who receives a conviction for a criminal offense is automatically retired, in a form suggesting that retirement occurs immediately upon satisfaction of the requirements under the provision, since, as noted above, an automatic retirement measure based on such a ground must also be recognized as legitimate as a type of dismissal, such provisions of the Rules of Employment or labor-management agreement, notwithstanding their formal wording, can constitute a lawful ground for automatic retirement only in cases where such legitimacy as described above can be recognized. If, instead, the intent is to treat all cases formally falling under the above provision as grounds for automatic retirement, this may be viewed as being in violation of the provisions of Article 27, Paragraph 1 of the Labor Standards Act.
Viewed in this light, it is reasonable to interpret the provisions concerning grounds for automatic retirement in the Rules of Employment or the collective agreement as carrying an inherent limitation (內在的 制約) requiring the existence of a justifiable reason as referred to in Article 27, Paragraph 1 of the Labor Standards Act. Understood in this manner, the above provisions cannot be deemed invalid as violating Article 27, Paragraph 1 of the Labor Standards Act.
C. The judgment below is unlawful in that it misapprehended the legal principles concerning dismissal in the form of automatic retirement and failed to exhaust its examination, and the argument is well-founded to this extent.
Therefore, without determining the remaining grounds of appeal, the opinions of the participating Justices being unanimous, it is ordered that the judgment below be reversed and the case be remanded to the court below, as stated in the Order.
Justice Kim Seok-su (Presiding Justice), Bae Man-un (Justice in charge), Kim Ju-han, Jeong Gwi-ho