[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Daewoo Carrier Co., Ltd., Litigation Representatives: Attorney Oh Seong-hwan and 1 other
[Lower Court Judgment] Seoul High Court Judgment rendered February 19, 1992, Case No. 91Na13436
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
1. Summary of the facts found by the lower court
A. The Daewoo Group had under it 26 affiliated companies including the Defendant company. For the purpose of smooth adjustment of personnel supply and demand among the affiliated companies and efficient implementation of personnel policy at the group level, the Group established and operated the Daewoo Manpower Management Committee and the Group Planning and Coordination Office under the Group. With respect to college-graduate managerial employees, the Group made the salary systems identical across all affiliated companies, and, in principle, did not permit each affiliated company to individually recruit such employees; instead, the Group Manpower Management Committee, taking into account the manpower needs of each affiliated company, recruited them collectively at the group level and then assigned them to each affiliated company. Thereafter, the Group Planning and Coordination Office annually assessed the surplus or shortage of manpower at each affiliated company, formulated staffing plans, and, with respect to surplus personnel at affiliated companies, collected such information at the group level and transferred them to other affiliated companies that had requested additional staffing, thereby carrying out personnel management. However, as needed, each affiliated company also directly recruited college-graduate managerial employees. In cases where employees were transferred in and out among affiliated companies at the group level in the above manner, although the practice was that the affiliated company at which the employee finally retired would aggregate the employee's entire period of service at the affiliated companies under the Group and pay retirement allowances accordingly, with other monetary settlement procedures also being carried out at that time, without going through settlement procedures for retirement allowances and other monetary payments at the time of each transfer, because the actual amounts received in bonuses, allowances, etc. differed among the affiliated companies (in the case of various allowances, the difference was about 40,000 to 50,000 won, and in the case of bonuses, the difference was 200% to 300%, even at the same job grade, depending on the affiliated company), in transferring managerial employees to other affiliated companies, the practice was to obtain the express or implied consent of the employee concerned before implementing the transfer.
B. The Plaintiff graduated from university around February 1986 and was recruited through open recruitment of college-graduate managerial employees conducted by the Daewoo Group Manpower Management Committee, and after being assigned to the Defendant company, worked diligently as an assistant manager (electrical position) belonging to the OOOOO Team at the Defendant company's Incheon plant, to the point of having his ability recognized even by the Defendant company. Although the Defendant company experienced business difficulties, including no small accumulation of deficits, due to deteriorating business conditions such as poor exports and labor-management disputes up until around 1989, which was near the time of its founding, from around April 1989 the Defendant company began production of the rotary compressor which it had focused on developing, and with 1990 designated as the year for turning a profit, its business condition was gradually improving (in fact, in 1990 the Defendant company's domestic sales volume of air conditioners, its main product, ranked first among competing companies). In early March 1990, the Defendant company's representative director, while encouraging employees to increase production, went so far as to mention that he would further supplement the personnel of the OOOOO Team to which the Plaintiff belonged, and there was no surplus personnel in the said OOOOO Team.
C. Around February 1990, the issue arose of transferring the Plaintiff to the Defendant company's Gwangju plant because that plant was short one electrical position employee; however, at the time, the Plaintiff expressed difficulty in working in Gwangju due to the treatment of his wife's illness (suppurative arthritis, etc.) for which she was then receiving treatment. Around that time, Daewoo Shipbuilding & Heavy Machinery Co., Ltd. (hereinafter abbreviated as "Daewoo Shipbuilding"), an affiliated company, requested that an experienced electrical position employee be supplied to join its small passenger car production team. Upon receiving this request, the Daewoo Group Planning and Coordination Office instructed the Defendant company to send it the list and personnel record cards of experienced electrical position employees belonging to the Defendant company. Accordingly, on March 13, the Defendant company sent to Daewoo Shipbuilding the list and personnel record cards of four electrical position employees including the Plaintiff, and Daewoo Shipbuilding, having determined that the Plaintiff was the suitable candidate, notified the Planning and Coordination Office and the Defendant company of this. Accordingly, on March 21, without any consultation whatsoever with the Plaintiff, the Defendant company requested a personnel order from the said Planning and Coordination Office to transfer the Plaintiff from the Defendant company to Daewoo Shipbuilding effective April 1 (the transfer destination requested by the Defendant company was not the originally planned small passenger car production team of Daewoo Shipbuilding, and the said passenger car production team was separately managed, with personnel orders being issued distinctly for it). On April 10, the Planning and Coordination Office, in accordance with the Defendant company's request, retroactively issued a personnel order transferring the Plaintiff from the Defendant company to Daewoo Shipbuilding effective April 1, and notified the Plaintiff of this.
D. As the Plaintiff, asserting that the above personnel action was unjust because it was carried out without prior consultation with, or prior consent of, the Plaintiff, refused to report for duty at Daewoo Shipbuilding and continued to report to work at the Defendant company, the Defendant company convened a personnel committee on June 30 and, on the ground that the Plaintiff had failed to comply with the company's personnel order, took disciplinary action of suspension for four weeks from July 11 to August 7. Meanwhile, as the Defendant company was about to convene the personnel committee for the Plaintiff's discipline on the above ground, the Plaintiff, on the date of the meeting, June 30, at around 08:00, distributed at the main entrance of the Daewoo Center Building, to Group employees reporting to work, leaflets protesting the Group's personnel management practices. When, even after the expiration of the above suspension period, the Plaintiff continued to refuse to report for duty at Daewoo Shipbuilding on the ground that the above personnel order was unjust, the Defendant company again convened a disciplinary committee for the Plaintiff on August 17 and, on the grounds that the Plaintiff had failed to comply with the company's lawful personnel order and had defamed the company by distributing the above leaflets, dismissed the Plaintiff effective August 20. The Defendant company's rules of employment enumerate, as grounds for disciplinary action such as suspension against its employees, failure without justifiable reason to comply with a superior's lawful work-related order or instruction, and enumerate, as grounds for dismissal, unauthorized absence without justifiable reason for one week or more and failure to comply with a request to report to work, or absence of 15 days or more in one month, printing or distributing leaflets or handbills without the permission of the company or the labor union, and other conduct of a degree comparable to the grounds for dismissal, among others.
2. Judgment on Ground of Appeal No. 1 by the Defendant's Litigation Representatives
The lower court's factual findings and determination on the points raised in the argument (that the amounts actually received in bonuses and various allowances by employees of the same job grade differ among the affiliated companies under the Daewoo Group, and that the practice of transferring managerial employees within the Daewoo Group to other affiliated companies has been carried out only with the express or implied consent of the employee concerned) are, in light of the evidence set forth in the lower court's judgment, deemed justified, and it cannot be found that there was any illegality in the process, such as a violation of the rules of evidence, resulting in erroneous fact-finding, as argued in the brief.
The so-called jeokjeok (轉籍, transfer of affiliation; the lower court's judgment used the expression "transfer between affiliated companies"), by which an employee is transferred, changing his affiliation, from the enterprise by which he is employed to another enterprise so as to engage in the work of that other enterprise, constitutes either a mutual rescission of the labor contract with the previously affiliated enterprise and the conclusion of a new labor contract with the enterprise to which he is to be transferred, or a transfer of the employer's status under the labor contract. Therefore, unlike a change of post or reassignment, which is a personnel movement within the same enterprise, such transfer of affiliation, absent special circumstances, becomes effective only with the consent of the employee. In order to recognize that there exists a practice whereby the employer transfers an employee to another affiliated company within a corporate group without obtaining the employee's consent, and that such practice constitutes part of the content of the labor contract, it must be shown either that such practice has been clearly recognized in the business community generally as a normative fact governing labor relations, or that it has been established as a de facto system within the enterprise, being accepted as a matter of course by the members of the enterprise generally without raising any objection. If the facts are as found by the lower court, then even if, as argued in the brief, transfers of affiliation among the affiliated companies within the Daewoo Group have continued for approximately 20 years and more than 30% of current managerial employees have experience of having been so transferred, it is difficult to conclude that a practice whereby the employer unilaterally transfers an employee's affiliation to another affiliated company without obtaining the consent of the employee concerned has been clearly recognized as a normative fact or established as a de facto system.
The argument, in the end, amounts to no more than a criticism of the lower court's exercise of its exclusive authority to weigh the evidence and find the facts, and is therefore unacceptable.
3. Judgment on Ground of Appeal No. 2
The lower court's factual findings and determination on the point raised in the argument (that there was no surplus personnel in the OOOOO Team of the Defendant company to which the Plaintiff belonged at the time of the transfer order at issue in this case) are, in light of the evidence set forth in the lower court's judgment, deemed justified, and it cannot be found that there was any illegality in the process, such as weighing evidence contrary to the rules of experience or otherwise violating the rules of evidence, resulting in erroneous fact-finding, as argued in the brief.
If the facts are as found by the lower court, it cannot be said that the Defendant company issued the transfer order at issue in this case as a means of avoiding a redundancy dismissal of the Plaintiff, an electrical position employee. As pointed out in the brief, the lower court's judgment made no mention whatsoever of the circumstances under which, in issuing the transfer order at issue in this case, the Defendant company transferred the Plaintiff not to the originally planned small passenger car production team of Daewoo Shipbuilding but to another department of Daewoo Shipbuilding; however, insofar as the disciplinary dismissal at issue in this case, based on grounds including the Plaintiff's failure to comply with the said transfer order, cannot be deemed to satisfy the requirements for a redundancy dismissal, the circumstances under which the department at which the Plaintiff would work within Daewoo Shipbuilding came to be changed have no direct bearing on the propriety of the Defendant company's transfer order and disciplinary dismissal at issue in this case. Therefore, it cannot be said that the lower court's judgment is unlawful, as argued in the brief, on the ground that it failed to properly examine the matter and omitted judgment thereon, thereby affecting the judgment.
This argument, too, amounts to no more than a criticism of the lower court's exercise of its exclusive authority to weigh the evidence and find the facts, or a disparagement of the lower court's determination premised on facts not found by the lower court, and is therefore unacceptable.
4. Judgment on Ground of Appeal No. 3
The lower court determined that the disciplinary dismissal at issue in this case, imposed on the Plaintiff on the grounds that the Plaintiff, in objection to the transfer order at issue in this case, refused to report for duty at the transferee company, and, as an expression of protest against the convening of the disciplinary committee against the Plaintiff on that ground, distributed to some employees within the Group, without the company's approval, leaflets expressing somewhat dissatisfaction with the Group's personnel system, lacked justification and was therefore invalid.
Examining the reasoning of the lower court's judgment as a whole, it is understood that the lower court determined that, even if the Plaintiff's above act of distributing leaflets constitutes an independent ground for discipline as argued in the brief, in light of the motive and circumstances of the act, it cannot be deemed to constitute a ground attributable to the employee to a degree that would make it socially unacceptable to continue the labor contract, and therefore that the disciplinary dismissal at issue in this case, based on this ground, cannot be recognized as justified. Accordingly, the argument that the lower court's judgment is unlawful in that it failed to properly examine and omitted judgment on the above act of distributing leaflets as an independent ground for discipline is likewise unacceptable.
5. Judgment on Ground of Appeal No. 4
The reason for requiring the employee's consent as a requirement for a transfer of affiliation is to prevent the disadvantage that the employee may suffer due to the change in the subject holding the right to direct work in the labor relationship. In a case where affiliated enterprises having diverse business lines and types form a corporate group and conduct economic activities with unity in terms of capital, composition of executives, working conditions, business operations, and so forth, and where, within that group, personnel exchanges between affiliated enterprises have been carried out routinely and customarily and frequently, no differently from changes of post or reassignments which are personnel movements within the same enterprise, transferring an employee employed by an enterprise within that group to another affiliated enterprise, even though formally the employer's legal personality changes, may in substance be difficult to regard as a change in the subject holding the right to direct work. Therefore, if the employer has obtained the employee's comprehensive consent in advance (either at the time the employee joins the company or during the course of employment) with respect to such transfer of affiliation within the corporate group, it should be held that the employee may be effectively transferred to another affiliated enterprise even without obtaining the employee's consent on each occasion.
However, under Article 22 of the Labor Standards Act (근로기준법) and Article 7, Item 1 of the Enforcement Decree of the same Act, the employer is required, at the time of concluding a labor contract, to specify to the employee the working conditions, including matters concerning wages, working hours, place of work, and the duties to be performed. In light of the purport of this provision, which is designed to protect the employee by taking into account the employee's dependency on a specific enterprise, it should be interpreted that, where an employer obtains an employee's comprehensive prior consent with respect to a transfer of affiliation within a corporate group, the employer must specify the enterprise (or enterprises, if plural) to which the transfer may be made and obtain the employee's consent after specifying the basic working conditions, including the duties to be performed at that enterprise.
In this case, even if the manner and actual state of personnel management of the Daewoo Group to which the Defendant company belongs, and the circumstances under which the Plaintiff was recruited as an employee of the Defendant company, are as argued in the brief, such circumstances alone are insufficient to find that, upon joining the Defendant company as an employee, the Plaintiff gave comprehensive prior consent, as argued in the brief, to comply with an order transferring him to another affiliated company within the Daewoo Group. Furthermore, although Defendant's Exhibit No. 3, cited in the brief, is a written pledge submitted by the Plaintiff at the time of joining the Defendant company, and contains language stating, "I will absolutely comply, without complaint, with reassignment, business trips, and other orders of your company," this can be understood merely as an expression of intent by the Plaintiff to comply with the Defendant company's right to direct work on the premise that the labor contract relationship with the Defendant company continues to exist, and cannot be regarded as comprehensive consent to a transfer of affiliation that would terminate the labor contract with the Defendant company.
The lower court's rejection of the Defendant's argument that the Plaintiff had given comprehensive prior consent to a transfer of affiliation to another affiliated company is, in light of the evidence set forth in the lower court's judgment and the legal principles set forth above, deemed justified, and it cannot be found that the lower court's judgment is unlawful, as argued in the brief, in erroneously finding facts in violation of the rules of evidence or in omitting judgment. Accordingly, this argument, too, is without merit.
6. Therefore, the Defendant's appeal is dismissed, and the costs of the appeal are to be borne by the Defendant, the losing party, all Justices concurring, as set forth in the Order.
Presiding Justice Yoon Kwan
Justice Choi Jae-ho
Justice Kim Ju-han
Justice Kim Yong-jun (Reporting Justice)