[Plaintiff (Selected Party), Appellee]
[Defendant, Appellant]
[Judgment Below]
Daegu High Court Decision 90Na2520 rendered on September 5, 1990
[Order]
The part of the judgment below concerning Plaintiff (Selected Party) 1, 2, and Selected Parties 1, 2 is reversed, and this part of the case is remanded to the Daegu High Court.
The remainder of the Defendant's appeal is dismissed.
The costs of appeal with respect to the dismissed portion shall be borne by the Defendant.
[Reasoning] As to the grounds of appeal argued by Defendant's litigation representative:
1.
Article 27-3 of the Labor Standards Act (Labor Standards Act, 근로기준법) (as amended by Act No. 4099 on March 29, 1989) provides a worker who has been unfairly dismissed with a means of applying to the Labor Relations Commission for relief; however, this cannot be interpreted as depriving the civil courts of jurisdiction over disputes concerning dismissal.
Accordingly, the ground of appeal premising that the instant action for confirmation of invalidity of dismissal is unlawful cannot be accepted.
2.
In an action for confirmation of invalidity of dismissal, the burden of alleging and proving the lawfulness of the dismissal procedure lies with the Defendant, who is the employer. Therefore, even if the court, in rejecting the Defendant's assertion concerning the lawfulness of the dismissal procedure on the basis of the evidence, in the process recognized a procedural defect that the Plaintiff had not specifically alleged, this cannot be said to constitute an illegality in violation of the principle of party presentation. This ground of appeal is without merit.
3. (1) Determination of the part concerning confirmation of invalidity of dismissal as to Selected Parties 3, 4, 5, 6, and 7
The court below found the following facts on the basis of the evidence. That is: the common ground for disciplinary dismissal of the above Selected Parties was their sit-in (protest) conduct; in addition, for Selected Party 6, leaving her post in the operating room on March 8, 1989 and the following day, and for Selected Party 7, failing to attend the Defendant Hospital's disciplinary committee meeting on July 15 of the same year, at which the instant disciplinary dismissals were resolved, were each added as additional grounds for discipline; the above Selected Parties, together with other union members of the Defendant Hospital, left their posts even during some working hours and staged a sit-in protest in front of the patient waiting room and elsewhere, creating a disturbance by beating drums and singing, among other things; however, the reason the above Selected Parties came to engage in such a protest was that the Defendant Hospital had failed to bargain collectively in good faith, had disregarded and failed to comply with the remedial order of the Labor Relations Commission, and, in particular, after May 1, 1989, had closed the annex building of the Defendant Hospital without assigning new positions to the workers, including the above Selected Parties, who had been working there, while engaging in unjust measures such as allowing only those workers who had withdrawn from the Defendant Hospital's labor union and submitted letters of resignation to continue working at the Defendant Hospital in the form of re-employment; the protest was aimed at demanding correction of these matters; and that the chairman of the board of directors of the Defendant Hospital, with respect to Selected Party 6's leaving her post in the operating room, had agreed that if the said Selected Party returned to work within two days, the matter would not be raised as a problem and her letter of resignation would be returned, and that thereafter, as the said Selected Party returned to work within two days, her letter of resignation was in fact returned to her.
The above fact-finding by the court below is proper, and it cannot be said, as argued in the grounds of appeal, that the court made findings contrary to the rules of experience or reason. Furthermore, in light of the above findings of fact, although it is true that the sit-in conduct of the above Selected Parties took on an undesirable character, the Defendant bears the greater share of responsibility for the circumstances leading to such a protest; therefore, the Defendant's disciplinary dismissal on the ground of the above sit-in conduct constitutes an abuse of the right to discipline. Moreover, matters such as Selected Party 6's leaving her post in the operating room and Selected Party 7's failure to attend the disciplinary committee meeting cannot constitute grounds for discipline in the first place; accordingly, the disciplinary dismissal disposition against the above Selected Parties must be deemed invalid. The determination of the court below to the same effect is proper, and it cannot be said that there was an error of law regarding Article 27(1) of the Labor Standards Act as argued in the grounds of appeal. This ground of appeal is without merit.
(2) Determination of the part concerning confirmation of invalidity of dismissal as to Plaintiff (Selected Party) 1, 2, and Selected Parties 1, 2
The court below, on the basis of the evidence, found the fact that Plaintiff (Selected Party) 1 received an order from the Defendant on April 6, 1989 transferring her from the Third Ward of the Main Building to the First Ward of the Annex Building but refused to comply with it, and the fact that Plaintiff (Selected Party) 2 and Selected Parties 1 and 2, while staging a sit-in protest at the cafeteria of the Main Building of the Defendant Hospital on June 2 of the same year, engaged in a physical altercation with hospitalized patients instigated by the Defendant, causing injury to two patients. The court below then determined, to the effect, that the above transfer order was a disadvantageous disposition depriving Plaintiff 1 of the time necessary to adapt to a new department, and thus the Defendant could only carry it out after obtaining the consent of the said Plaintiff or, at the very least, after conducting a prior interview with her; that her refusal to comply with a disposition unilaterally imposed without going through such a procedure could not constitute a ground for disciplinary dismissal; and further, that the act of Plaintiff (Selected Party) 2 and Selected Parties 1 and 2 in causing injury to the two patients, in light of the circumstances of the aforementioned protest as previously described, did not rise to the level of a ground for disciplinary dismissal.
According to the record, it can be seen that Plaintiff 1, having received the above transfer order on April 6, 1989, refused to comply with the order for four days until April 9; the distance between the Third Ward and the First Ward, to which she was to be transferred pursuant to the order, was no more than approximately 500 meters, and the content of her duties remained the same, namely, work as a nurse; accordingly, there is no basis for finding that the said Plaintiff's working in the First Ward, despite her position as chairperson of the labor union of the Defendant Hospital, would hinder her union activities.
Reassignment or transfer of a worker is, in principle, a matter within the employer's authority, and it goes without saying that the employer must be accorded reasonable discretion within the scope necessary for business purposes (see this Court's Decision 90Daka27389 rendered on February 22, 1991). Accordingly, the Defendant's transfer order against the said Plaintiff was justified, and the said Plaintiff's act of refusing to comply with it for as long as four days constitutes grounds attributable to her of such a degree that, in light of common social norms, the employment contract could not be continued.
Furthermore, examining, on the basis of the record, the circumstances under which Plaintiff (Selected Party) 2 and Selected Parties 1 and 2 caused injury to the two patients, it can be seen that the said Plaintiff and Selected Parties, together with other union members, staged a sit-in protest at the cafeteria of the Main Building of the Defendant Hospital from around 12:00 on June 2, 1989, causing a disturbance by beating drums and singing, among other things; that even as midnight approached that day they did not cease the disturbance; that when the hospitalized patients attempted to stop the disturbance, the said Plaintiff and Selected Parties resisted and engaged in a physical altercation, thereby causing injury to two patients; and there is no material from which it could be found that the hospitalized patients, as alleged by the said Plaintiff and Selected Parties, had been instigated by the Defendant Hospital.
If so, even taking into account the circumstances under which the said Plaintiff and Selected Parties came to engage in the protest in resistance to the Defendant Hospital's unjust measures as described above, the fact that the said Plaintiff and Selected Parties, in their capacity as nurses or nurse's aides, committed acts of injury against patients must be deemed to constitute grounds attributable to the workers of such a degree that, in light of common social norms, the employment contract could not be continued. Therefore, the instant disciplinary dismissal dispositions against Plaintiff (Selected Party) 1, 2 and Selected Parties 1, 2 must be deemed to have had justifiable grounds; nevertheless, the court below rendered a judgment to the contrary, and this constitutes an error affecting the judgment through a mistake of fact and a misunderstanding of the legal principles under Article 27(1) of the Labor Standards Act. The ground of appeal pointing out this error is well-founded.
For the reasons set forth above, the part of the judgment below concerning Plaintiff 1, 2 and Selected Parties 1, 2 is reversed and this part of the case is remanded to the court below, and the remainder of the Defendant's appeal is dismissed, with the costs of appeal with respect to the dismissed portion 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 Kim Sang-won (Presiding Justice), Park Woo-dong, Bae Seok, Yoon Young-cheol