[Plaintiff, Appellant]
[Defendant, Appellee] Singil Unsu Co., Ltd., Attorneys Lee Ik-woo and 1 other, Counsel for the Defendant
[Judgment Below] Seoul High Court Decision 90Na28424 rendered on December 28, 1990
[Order]
The appeal is dismissed.
The costs of the appeal are to be borne by the Plaintiff.
[Reasoning]
1. We examine Ground of Appeal No. 1(a) as argued by the Plaintiff's litigation representatives.
Article 28, Paragraph 2 of the collective bargaining agreement referred to in the argument provides that "the Company shall, with respect to the new hiring, dismissal, leave of absence, and disciplinary action of union members, take into consideration the opinion of the labor union, and shall notify the union of personnel decisions within seven days." Upon examination of the record, unlike a case in which a matter is decided in consultation with the labor union, such consideration of opinion is merely intended to use the union's opinion as reference material in making personnel decisions, and does not affect the validity of the personnel decision. Accordingly, the court below was correct in holding that even if there was a defect in the dismissal at issue in this case in that the union's opinion was not considered, the dismissal is not thereby rendered invalid, and there is no error of misapprehension of legal principles as argued. This point is without merit.
2. We examine Ground of Appeal No. 1(b).
According to the record, it is recognized that at the disciplinary committee meeting of the Defendant Company held on June 9, 1989, the disciplinary committee members discussed the circumstances of the accident at issue in this case, the degree of the victim's fault, the status of the victim's father, the extent of the damage, and the necessity of disciplinary action, and thereafter decided by secret ballot whether to discipline the Plaintiff. Therefore, it cannot be said, as argued, that the Plaintiff was disciplined based solely on the outcome of the accident without any substantive disciplinary procedure having been conducted. Furthermore, insofar as the Defendant Company's collective bargaining agreement or work rules contain no provision requiring prior notice to the person subject to discipline or affording an opportunity to explain in the disciplinary procedure, the disciplinary action cannot be deemed invalid merely because the Defendant did not follow such procedures in disciplining the Plaintiff (see this Court's Decisions 79Nu306, rendered December 26, 1979, and 90Daka27042, rendered April 9, 1991). The argument that the judgment below contains errors of insufficient deliberation and misapprehension of legal principles concerning restrictions on dismissal is without merit in its entirety.
3. We examine Ground of Appeal No. 1(c).
According to the description in Exhibit Eul No. 2 adopted by the court below, Article 13 of the Defendant Company's work rules enumerates grounds for dismissal in Items 1 through 17, among which Item 5 provides as a ground for dismissal the case where a decision of dismissal is made by the disciplinary committee for violation of Item 1 of the Sanctions (Disciplinary Action) Regulations under the work rules; and Items 1 and 3 of the Sanctions (Disciplinary Action) Regulations attached as an appendix to the work rules provide that a person who has caused a fatal accident shall be subject to disciplinary grounds. Therefore, the measure of the court below upholding the Defendant's dismissal, which was based on the fact that the Plaintiff caused a fatal accident as a disciplinary ground, is justified, and there is no error of misapprehension of legal principles as argued.
The argument contends that a fatal accident alone under Items 1 and 3 of the above Sanctions (Disciplinary Action) Regulations cannot constitute a ground for dismissal, and that a ground for dismissal arises only when a criminal conviction becomes final pursuant to Article 13, Item 14 of the work rules; however, this is merely an idiosyncratic view. Also, Article 30 of the collective bargaining agreement referred to in the argument provides that personnel action may not be taken only against a person who has been indicted summarily due to an accident; however, this merely means that where a minor accident occurs and results in a summary indictment, the person is excluded from being subject to personnel action. Therefore, this provision does not apply to a case such as the Plaintiff's, involving a serious fatal accident where summary indictment was not made, and the fact that at the time of dismissal it had not yet been determined whether an indictment would be brought does not require a different conclusion. This point is without merit.
4. We examine Ground of Appeal No. 2.
According to the reasoning of the judgment below, the court below found that the Plaintiff caused an accident resulting in the victim's death, and that the Plaintiff was at no small fault in failing to keep a proper lookout ahead and in proceeding despite ignoring the stop signal given by the deceased's father; and held that, even though the Plaintiff had generally driven in an exemplary manner and had reached a settlement with the victim's parents after the accident, in light of the circumstances and consequences of the accident, the dismissal of the Plaintiff was reasonable. Considering the circumstances of the accident and the extent of the damage as shown in the record, the situation before and after the accident, and the balance with treatment of other drivers involved in accidents at the Defendant Company, and all other relevant circumstances, the disciplinary dismissal of the Plaintiff did not exceed the bounds of discretion and had justifiable grounds. Accordingly, the judgment of the court below is deemed correct, and there is no error of misapprehension of legal principles as argued. This point is also without merit.
5. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Bae Man-un (Presiding Justice), Lee Hoi-chang, Kim Seok-su