[Plaintiffs, Appellants]
[Defendant, Appellee] Gyerim Ceramics Co., Ltd., Litigation Representative Attorney Yoon Jeong-bo
[Judgment Below] Daegu High Court Decision 91Na8211 rendered on December 24, 1992
[Order]
All appeals are dismissed.
The costs of appeal shall be borne by the Plaintiffs.
[Reasoning]
We examine the grounds of appeal of Plaintiff 1.
Where an employer closes down the business enterprise it operates and, as a result, dismisses all of its employees, such action is, in principle, valid as falling within the freedom of business management, unless it is a disguised closure intended to obstruct the right to organize of a labor union, etc. (see this Court's Decision 90Nu9421 rendered on May 12, 1992).
Upon examining the judgment below in light of the record, the court below, in rejecting the evidence supporting Plaintiff 1's assertion that the Defendant company's closure on December 30, 1987, followed by its withdrawal and resumption of operations on March 16 of the following year, was invalid as a disguised closure carried out in order to dismantle the company's labor union and to retaliate against workers who had participated in union activities, did not believe such evidence. Rather, based on the evidence it cited, the court below found as follows: the Defendant company, employing approximately 750 workers, is a company that manufactures pottery, sanitary ware, and the like; a company labor union was organized on December 1, 1987; from December 15 of the same month, the union unilaterally refused to work and engaged in collective action such as sit-in protests; as the sit-in protest became prolonged, the company posted a notice of temporary business suspension from December 17 to December 21 of the same month; meanwhile, the labor union and the Defendant company amicably reached an agreement on the disputed matters and attempted to resume operations on December 22, but approximately 150 dissatisfied union members organized a "suicide squad," demanded the resignation of the union officers, and clashed with workers who supported the union, mutually obstructing operations and continuing to occupy the cafeteria and engage in sit-in protests until December 30, making it difficult to expect normal operations; as a result, the company's administrative staff submitted a collective resignation letter together with a proposal for closure on December 28, citing, among other things, the absence of management; the Defendant company held a general meeting of employees and resolved to close the business before the risk of bankruptcy materialized, and on December 30 of the same month filed a report of business closure with the tax office, after which it sent the employees' reserve forces cards to their respective regions and settled and paid the workers' severance pay and other amounts; thereafter, in response to the recommendation of the administrative authorities and the petitions of workers who had worked for the Defendant company (including all of the Plaintiffs), the Defendant company gave all employees, including the former labor union officers, the opportunity to be rehired, and resumed operation of the company from March 16, 1988, but Plaintiff 1, without any particular reason, did not rejoin the company. Based on these findings, the court below determined that normal operations had been impossible for a prolonged period due to the labor union's unlawful industrial action and the resulting conflict among union members, causing enormous damage to the management of the company; that the Defendant company resolved to close the business through a general meeting of employees and processed the retirement in accordance with lawful procedures, including the payment of severance pay; and that no impropriety is apparent even in the subsequent rehiring process, including the selective rehiring of employees; therefore, the Defendant company's above closure measure cannot be concluded to be invalid as a disguised closure. This determination by the court below is justified and may be upheld. Furthermore, the above closure act cannot be deemed a conditional dismissal disposition with resumption of operations as a condition subsequent. Accordingly, there is no illegality, as argued in the grounds of appeal, due to misapprehension of facts in violation of the rules of evidence, or misapprehension of the legal principles concerning unfair labor practices or disguised closure. This ground of appeal is without merit.
We examine together the grounds of appeal of Plaintiff 2 and Plaintiff 3.
(1) According to the reasoning of the judgment below, the court below, comprehensively considering the evidence it cited, found as follows: Plaintiff 2 rejoined the Defendant company on March 16, 1988, and worked there; on March 18 of the same month, while coming to work, he got into an altercation with Non-party ○○○, the deputy manager of the accounting department, and sustained injuries requiring two weeks of treatment; he received outpatient treatment until March 31 of the same month, during which he submitted an absence report for 10 days, left early on one day, and came to work normally for 3 days, but was absent without leave from April 1 to April 18 of the same year; on April 10 of the same month, he came to the company and received his salary, but did not indicate whether he had any intention to continue working. The court below further found that the Defendant company's employment rules, separately from the disciplinary dismissal procedures set forth in Articles 99 through 105, provide in Article 108 as a ground for automatic dismissal that "where an employee is absent without leave for 5 or more days in a month, he/she shall be deemed to have no intention of continuing to work and shall be treated as having voluntarily resigned" (item 11); that the Defendant company regarded Plaintiff 2's above unauthorized absence as falling under this provision and treated Plaintiff 2 as having been automatically dismissed as of April 18, 1988. Based on these findings, the court below determined that Plaintiff 2 was automatically dismissed pursuant to the above provision without any separate disciplinary dismissal disposition, and therefore does not hold the status of an employee of the Defendant company.
Upon examination of the record, the above factual findings and determination of the court below are justified and may be upheld, and there is no illegality therein due to misapprehension of facts in violation of the rules of evidence, as argued in the grounds of appeal. This ground of appeal is without merit.
(2) According to the reasoning of the judgment below, the court below, comprehensively considering the evidence it cited, found as follows: Plaintiff 3 rejoined the Defendant company on March 16, 1988, and worked there; on March 18 of the same month, while engaged in a verbal dispute with Non-party ○○○ at the workplace, when Non-party ○○○, the section chief in charge, intervened to stop it, Plaintiff 3 shouted and used abusive language; on March 21 of the same month, while leaving work, Plaintiff 3 verbally abused and physically assaulted Non-party ○○○ and others, including grabbing them by the collar; on March 22 of the same month, upon arriving at work, Plaintiff 3 threatened to kill Non-party ○○○ in the women's locker room, but was discovered by the said ○○○ and received a warning; and on April 1 of the same year, having received an instruction from the said ○○○ to work in place of Non-party ○○○ starting at 12 o'clock, Plaintiff 3 refused and caused a disturbance, including grabbing the said person by the collar. The court below further found that Article 14, Paragraph 1 of the disciplinary rules under Article 100 of the Defendant company's employment rules provides, as grounds for dismissal, demotion, or suspension for an indefinite period, "a person who disobeys, resists, or commits assault or threats against the instructions and orders of a superior in the course of business" (item 6) and "a person who slanders or defames the company or a superior within the company" (item 10); and that Article 108 of the employment rules provides, as a ground for automatic dismissal, that "where a person who has been suspended for an indefinite period is not reinstated within 6 months, the retirement procedure shall be deemed completed" (item 9). The court below further found that the Defendant company held a disciplinary committee meeting on April 8, 1988, with Plaintiff 3 in attendance, and determined that Plaintiff 3's above conduct fell under the above grounds for discipline, thereby imposing a disposition of suspension for an indefinite period. Based on these findings, the court below determined that, taking into account all the circumstances revealed in the pleadings, including the circumstances of Plaintiff 3's misconduct and his prior misconduct, it was appropriate for the Defendant company to select the lightest among the types of discipline, namely suspension for an indefinite period; and that, since Plaintiff 3, despite receiving the suspension disposition, did not report to work but merely demanded invalidation of the disciplinary disposition and reinstatement, showing no sign of repentance, and since the suspension disposition was not lifted within 6 months, Plaintiff 3 was automatically dismissed.
Upon examination of the record, the above factual findings and determination of the court below are justified and may be upheld, and there is no illegality therein due to misapprehension of facts in violation of the rules of evidence or misapprehension of the legal principles concerning abuse of the right of discipline, as argued in the grounds of appeal. This ground of appeal is without merit.
(3) The argument of Plaintiff 2 and Plaintiff 3 that the Defendant company's employment rules are invalid because they were not adopted through lawful procedures, such as obtaining the consent of the employees, is an argument raised for the first time at the appellate stage before this Court, and thus cannot constitute a legitimate ground of appeal. This ground of appeal is without merit.
Therefore, all appeals are dismissed, and the costs of appeal are to be borne by the losing parties. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Supreme Court Justice Park Woo-dong (Presiding Justice), Kim Sang-won, Yoon Young-cheol (Justice in Charge), Park Man-ho