[Plaintiff, Appellee]
[Defendant, Appellant] Daelim Engineering Co., Ltd., Attorneys-in-fact Lee Jae-hu and 5 others
[Judgment Below]
Seoul High Court, Judgment of September 30, 1992, Case No. 91Na43406
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
As to Ground No. 1
The court below, comprehensively considering the evidence it adopted, found that the Plaintiff had committed misconduct including a disturbance against his workplace superior, non-party Han Mun-ju, and then held as follows: although the disturbance constituted an act disrupting order within the company and thus fell under the grounds for disciplinary action set forth in Article 64, Item 2 of the Rules of Employment (취업규칙), it did not fall under the grounds for disciplinary action set forth in the collective bargaining agreement (단체협약). Since the portion of the Rules of Employment providing for disciplinary action based on acts disrupting order thereby falls below the standard set by the collective bargaining agreement, it is invalid, and disciplinary action cannot be taken by applying it. Furthermore, since Article 40 of the collective bargaining agreement provides that dismissal must be governed by the collective bargaining agreement and that dismissal may not be effected pursuant to the Rules of Employment, a disciplinary dismissal applying the Rules of Employment cannot be made; therefore, the disciplinary dismissal in this case is invalid.
Any portion of the Rules of Employment that violates the standards set forth in the collective bargaining agreement concerning working conditions and other treatment of workers is invalid (Article 36, Paragraph 1 of the Trade Union Act (노동조합법)), and the Rules of Employment may not conflict with the collective bargaining agreement applicable to the relevant place of business (Article 97, Paragraph 1 of the Labor Standards Act (근로기준법)). However, so long as it does not conflict with the collective bargaining agreement, the employer may establish new grounds for disciplinary action in the Rules of Employment, and may also take disciplinary action based on such grounds (see this Court's Decision 92Nu13035, delivered on January 15, 1993).
However, Article 64, Item 2 of the Defendant company's Rules of Employment, which formed the basis for the disciplinary dismissal in this case, provides for new grounds for disciplinary action that have no relation to the grounds for disciplinary action set forth in Article 36 of the collective bargaining agreement, and it is therefore difficult to say that it conflicts with the provisions of Article 36 of the collective bargaining agreement. Accordingly, the lower court's holding that the portion of Article 64, Item 2 of the Rules of Employment concerning acts disrupting order falls below the standard of Article 36 of the collective bargaining agreement and is thus invalid was erroneous. Nevertheless, since Article 40 of the collective bargaining agreement provides to the effect that dismissal must be governed by the collective bargaining agreement and may not be effected pursuant to the Rules of Employment, the Plaintiff, who was a union member, could not be dismissed by applying the Rules of Employment.
The lower court's determination that the disciplinary dismissal in this case, made by applying Article 64, Item 2 of the Rules of Employment, is invalid is correct, and the argument is ultimately without merit.
As to Ground No. 2
Upon examination of the record, the lower court, having found the circumstances and course of the disturbance as stated in its judgment as well as the Plaintiff's attitude following the disturbance, comprehensively considered the circumstances of the disturbance in this case, the extent of harm to the victim and to the Defendant company, and the Plaintiff's attitude of remorse, and determined that the Defendant company's imposition of disciplinary dismissal—the most severe disciplinary measure—for the Plaintiff's aforementioned disturbance was excessively harsh and thus exceeded the scope of the disciplinary authority. This determination is justified, and it cannot be said that there was any illegality therein due to incomplete deliberation, violation of the rules of evidence, or misapprehension of facts due to violation of the rules of experience, as pointed out in the argument. Accordingly, 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. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices involved.
Chief Justice Choi Jae-ho
Justice Bae Man-un
Justice Kim Seok-su (Presiding Justice)
Justice Choi Jong-yeong