[Plaintiff, Appellant]
[Defendant, Appellee] Korea Coal Corporation, Attorney Baek Gwang-hyeon, counsel for the Defendant
[Court Below] Seoul High Court Decision 90Na28394 delivered on July 5, 1991
[Order]
The appeal is dismissed.
The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
According to the reasoning of the judgment below, the court below, based on the evidence presented, found that the Plaintiff was absent from work without leave for 21 days within the three-month period from February to April 1988, and held that the Plaintiff fell under Article 7 of the Defendant Corporation's Disciplinary Standards for Employees with Poor Attendance Records (출근성적불량자 징계기준), which provides that an employee who is absent from work without leave for 20 days or more within a three-month period shall be dismissed for disciplinary reasons. The court below thus held that the disciplinary dismissal disposition taken by the Defendant Corporation against the Plaintiff on June 13, 1988 had justifiable grounds. Furthermore, Article 28 of the Defendant Corporation's collective bargaining agreement (단체협약) provides, with respect to disciplinary procedures, that when a union member is to be disciplined, the union and the person concerned must be given an opportunity to present a defense. The court below found that the Defendant Corporation notified the Plaintiff by telephone at around 11:00 a.m. on June 4, 1988 of the holding of a disciplinary committee meeting, that the Plaintiff had his wife attend the disciplinary committee meeting held on June 6 of that month, and that thereafter, upon the Plaintiff's request for a retrial, the Plaintiff attended and made statements at the retrial proceeding held on July 15 of that year. Accordingly, the court below held that it could not be said that the Plaintiff was denied an opportunity to present a defense in the disciplinary procedure in this case, and therefore concluded that the Defendant's disciplinary dismissal disposition against the Plaintiff was justified.
Upon examination of the record, the fact-finding of the court below that the Plaintiff was absent from work without leave for 21 days within the three-month period from February to April 1988 is acceptable, and there is no illegality of misapprehension of the facts due to violation of the rules of evidence or insufficient deliberation as argued in the grounds of appeal.
Furthermore,
as pointed out in the grounds of appeal, it is true that "justifiable cause" under Article 27 of the Labor Standards Act (근로기준법), in the case of disciplinary dismissal, means that there exists a cause attributable to the employee such that, in light of common social norms, the employment contract cannot reasonably be continued; therefore, the mere existence of grounds falling under the disciplinary dismissal provisions does not automatically mean that the disciplinary dismissal disposition has justifiable cause, and only where it is recognized, upon consideration of the specific circumstances, that there is justifiable cause in the above sense, can it be said that the disciplinary dismissal disposition has justifiable cause.
However, although the judgment below states, in effect, that since the Plaintiff had grounds for disciplinary dismissal, the dismissal disposition in this case is, absent special circumstances, justified, the court below did not determine that the dismissal disposition in this case was justified merely on the ground that the Plaintiff had grounds falling under disciplinary dismissal. Rather, the court below further examined in detail the circumstances leading to the Plaintiff's falling under the grounds for disciplinary dismissal, and, in light of the degree of the Plaintiff's misconduct, found that there existed a cause attributable to the Plaintiff such that, in light of common social norms, the employment contract could not be continued, and accordingly determined that the dismissal disposition in this case had justifiable cause. Therefore, it cannot be said that the judgment below contains an error of law due to misapprehension of the legal principles concerning abuse of the right to discipline, as argued in the grounds of appeal.
Even where a collective bargaining agreement or employment rules merely provide that when a union member is to be disciplined, the person to be disciplined must be given an opportunity to present a defense, without any special provision regarding the timing and method of such notification, it is, as argued in the grounds of appeal, necessary that the date, time, and place of the disciplinary committee meeting be notified to the person to be disciplined with sufficient advance notice to allow him to prepare his defense and supporting materials. However, in light of the facts lawfully found by the court below, the notification given on June 4, 1988 may be deemed to have been given with sufficient advance notice for the Plaintiff, the person to be disciplined, to prepare his defense and supporting materials. Therefore, the argument in the grounds of appeal that the judgment below erred in its understanding of the legal principles concerning disciplinary procedure cannot be accepted either.
All the grounds of appeal are 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 participating in the decision.
Justice Kim Ju-han (Presiding Justice), Choi Jae-ho, Yoon Kwan, Kim Yong-jun