[Plaintiff, Appellant]
[Defendant, Appellee] North Korea Research Institute, a juridical association (사단법인 북한연구소), Attorney Jeong Tae-gyu, Litigation Representative
[Judgment Below] Seoul High Court Judgment 91Na21765, rendered October 23, 1991
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. As to whether the disciplinary procedure was violated
Article 33 of the Enforcement Regulations for Personnel Regulations (인사규정시행내규) of the Defendant juridical association provides: "A request for disciplinary action shall be submitted by an executive officer or the head of each department or office to the head of the department in charge of personnel affairs. The head of the department in charge of personnel affairs who has received the request for punishment shall submit it to the deliberation of the Personnel Committee." This provision may be interpreted to mean that a request for disciplinary action may be made not only by an executive officer or the head of the department to which the person subject to discipline belongs, but also by the head of another department to which the person subject to discipline does not belong. Moreover, even assuming that, under the above provision, the head of each department or office may request disciplinary action only with respect to employees belonging to his own department, and that therefore the request for disciplinary action against the Plaintiff made by the Head of the General Affairs Department constitutes a procedural violation, in light of the fact that ultimately the Head of the General Affairs Department, who is the head of the department in charge of personnel affairs, submitted the request for disciplinary action to the deliberation of the Personnel Committee, such procedural violation cannot be found to render the disciplinary dismissal of the Plaintiff void.
Furthermore, according to the record, it is recognized that on December 27, 1989, at around 15:40, the Plaintiff received a notice of attendance stating that he would be given an opportunity to attend and make statements before the Personnel Committee of the Defendant juridical association, which was to convene at 09:00 the following day, and that the Plaintiff requested a postponement of the Personnel Committee meeting; that the Personnel Committee nevertheless convened as scheduled and, having completed its deliberation on the grounds for discipline without the Plaintiff's attendance, resolved by the unanimous vote of all seven members to dismiss the Plaintiff by way of disciplinary action; and that the Chairman of the Board of the Defendant juridical association issued the dismissal disposition in accordance with the above resolution on the same day.
However, even though the notice of attendance to the Personnel Committee was given to the Plaintiff only one day in advance as described above, this cannot be deemed an unlawful notice that defeats the purpose of the guarantee of the right to make statements as provided in the Personnel Management Regulations, unless the notice was given with such short notice that the Plaintiff had no time to prepare his defense and supporting materials (see Supreme Court Judgment 78Nu123, rendered November 27, 1979). Moreover, since the Plaintiff, having reported to his workplace on the day the Personnel Committee convened, clearly expressed, despite receiving two requests to attend the Personnel Committee, his intention not to attend the Personnel Committee, it cannot be said that the disciplinary resolution made without the Plaintiff's attendance violated the above Personnel Management Regulations requiring that a person subject to discipline be given a sufficient opportunity to make statements.
Furthermore, it is recognized that the Plaintiff, having received notice of the above dismissal disposition on December 31, 1989, and being dissatisfied therewith, requested a reexamination from the Personnel Committee on January 6, 1990, and attended the Personnel Committee convened for reexamination at 10:00 on the 23rd of the same month, where he personally made statements favorable to himself. Therefore, the Plaintiff's argument that the disciplinary procedure against him was void for violating the provision guaranteeing the right to make statements is all the more unacceptable.
Accordingly, the court below was correct in rejecting, on the same rationale, the Plaintiff's argument that his dismissal was void due to procedural illegality, and there is no error of misapprehending the law concerning disciplinary procedure as argued in the grounds of appeal. This ground of appeal is without merit.
2. As to the existence of grounds for discipline
According to the entries in Exhibits A No. 1-1, 1-2 (notice of disciplinary disposition and the statement of reasons) and Exhibits B No. 11-1, 11-5 (request for disciplinary resolution, minutes of the Personnel Committee) cited in the first instance judgment as adopted by the court below, among the grounds for discipline against the Plaintiff found by the court below, it is clear that the following were not grounds for discipline that had undergone deliberation by the Personnel Committee: (i) the fact that the Plaintiff filed criminal complaints against the Chairman of the Board of the Defendant juridical association with the Seoul District Public Prosecutors' Office twice, in around February 1989 and around March 1989, for violation of the Labor Standards Act (근로기준법), and again in around June 1989 for violation of the Trade Union Act (노동조합법); and (ii) the fact that the Plaintiff received a warning from the National Unification Board on July 18, 1989, for poor work performance due to his negligence in handling his own duties. Nevertheless, the court below erred in including such grounds, which had not undergone deliberation by the Personnel Committee, among the grounds for discipline in determining the propriety of the disciplinary disposition against the Plaintiff. Furthermore, according to the record, while it is a fact that the Plaintiff filed a criminal complaint against Kim Chang-sun with the Northern Branch of the Seoul District Public Prosecutors' Office on October 5, 1989, on suspicion of forgery of private documents, uttering of forged private documents, and violation of the Labor Dispute Adjustment Act (노동쟁의조정법) (Case No. 89Hyeongje41380), and separately filed an accusation with the same branch office on the 24th of the same month (Case No. 89Hyeongje44817) again raising the issue of occupational embezzlement and occupational breach of trust, matters which had already been disposed of as "no suspicion" by the Seoul District Public Prosecutors' Office on July 25, 1989, and that both of these cases also resulted in decisions of "no suspicion," the court below, in describing this portion, stated that the Plaintiff filed a repeated complaint concerning the same facts including the forgery of private documents and uttering thereof that had already been disposed of as "no suspicion," and also stated that the Plaintiff filed complaints twice with the Northern Branch Office, specifying the dates of the complaints as September 20, 1989 and the following day; these statements cannot escape criticism as factually erroneous, albeit only in these peripheral respects.
However, the court below's fact-finding as to the remaining portions, excluding the facts noted above which the court below had additionally considered in addition to the original grounds for discipline, is all deemed to be justified and acceptable, and there is no illegality of misapprehending the facts in violation of the rules of evidence. Furthermore, even taking into account only the grounds for discipline that had originally undergone deliberation by the Personnel Committee, insofar as the Plaintiff's conduct constitutes grounds for discipline as set forth in the Personnel Management Regulations, in light of the various circumstances stated by the court below, it cannot be said that the dismissal of the Plaintiff was so clearly unreasonable in light of generally accepted social norms as to constitute an abuse of the discretion regarding disciplinary action.
Furthermore, even trade union activities lose their legitimacy where they contravene generally accepted social norms, and in particular, industrial action is recognized as legitimate only where its means and methods are limited to passively impeding the normal operation of business so as to cause damage to the employer (see this Court's Judgment 90Do1431, rendered October 12, 1990). As found above, filing criminal complaints and accusations against the representative of the Defendant juridical association with investigative agencies without clear supporting materials, or submitting to other agencies petitions containing content that denigrates his character, and secretly removing without authorization and freely photocopying the minutes kept by the Head of the General Affairs Department, go beyond the bounds of legitimate industrial action or legitimate union activity, even if done pursuant to the collective will of the union members. Moreover, upon examination of the record, there is no evidentiary material to suggest that the Defendant juridical association, solely out of hostility toward the Plaintiff's activities as the chairman of the labor union, took the grounds noted above only as a pretext in form in order to substantially exclude the Plaintiff from the Defendant juridical association and thereby carried out the dismissal in this case. Therefore, it cannot be said that the dismissal of the Plaintiff constitutes an unfair labor practice rendering it void.
Accordingly, the arguments concerning misapprehension of facts or misapprehension of law regarding the grounds for discipline as set forth in the grounds of appeal are ultimately without merit.
This ground of appeal is also without merit.
3. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiff, who is the losing party. The Justices involved unanimously agree, and it is so ordered as stated in the Order.
Presiding Justice Kim Sang-won, Justice Yoon Young-cheol, Justice Park Man-ho