[Plaintiff, Appellant]
[Defendant, Appellee] Asung Glass Industrial Co., Ltd., Attorney Lee Byeong-hu, counsel for the defendant
[Lower Court Judgment]
Seoul High Court, Judgment of March 14, 1991, 90Na31741
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
A reassignment or transfer disposition against an employee, in that it brings about changes in the kind, content, or place of work that the employee is required to provide, may constitute a disposition disadvantageous to the employee; however, since it falls in principle within the authority of the employer (the person holding personnel authority), considerable discretion must be recognized within the scope necessary for business operations, and such a disposition cannot be deemed invalid unless there are special circumstances such as that it violates Article 27, Paragraph 1 of the Labor Standards Act (근로기준법), which prohibits an employer from dismissing, suspending, placing on leave, reducing the wages of, or otherwise disciplining an employee without justifiable cause, or that it constitutes an abuse of rights. Whether such a disposition falls within the scope of legitimate personnel authority should be determined by weighing the business necessity of the transfer order against the disadvantages to the employee's livelihood resulting from the transfer, and by whether procedures required under the principle of good faith, such as consultation with the labor union to which the employee belongs (or with the employee personally, if there is no labor union), were followed in the course of making the transfer disposition (see Supreme Court Decision 86Daka2567, delivered February 28, 1989).
Based on the evidence cited, the court below found as follows: the Defendant's Seoul factory was determined to be a non-urban-type factory located in a residential area, and accordingly received a relocation order from the Seoul Metropolitan Government on March 13, 1984 pursuant to the plan for relocating pollution-emitting establishments; thereafter, upon receiving repeated relocation demand orders from the competent Seongdong-gu Office, the Defendant began construction of a new factory in Banwol in August 1985, completed the construction in June 1986, and began operations, establishing a factory relocation plan to relocate the Seoul factory and consolidate it with the Banwol factory; however, since the factory relocation plan was a difficult task requiring reorganization and expansion of personnel and material facilities, there were setbacks in implementing the plan, and in 1987 the Defendant was even issued a summary order imposing a fine of 2,500,000 won for failure to comply with the relocation order; feeling the need to expedite the factory relocation plan, the Defendant established a concrete plan to shift the Seoul factory's work volume to the Banwol factory and to transfer employees belonging to the Seoul factory to the Banwol factory, reported this plan to the Seongdong-gu Office, and, as part of that plan, carried out the transfer disposition at issue in this case against five employees of the facilities management section of the production department of the Seoul factory, including the Plaintiff. The court below also found: even before the transfer disposition against the Plaintiff at issue in this case, the Defendant had already transferred 30 administrative staff members and 8 production staff members of the Seoul factory to the Banwol factory; moreover, about one month prior to the transfer disposition at issue, from early March 1989, the Defendant informed the six subject employees, including the Plaintiff, of the transfer plan and emphasized its necessity, whereupon non-party ○○○, prior to the transfer disposition at issue, in early April 1989, stated that he would rather go to another company than go to Banwol, resigned from the Defendant company, and took employment at another company; of the five employees subject to the transfer disposition at issue, two resigned from the Defendant company simultaneously with the transfer disposition (the remaining one resigned thereafter); even if the Plaintiff were to go to the Banwol factory, the type and content of the work would be the same as at the Seoul factory, and although there would be the inconvenience of commuting from Seoul to Banwol, there would be no great difficulty apart from a somewhat longer commuting time, since the Plaintiff could use the commuter bus provided by the Defendant company; the Defendant company, in early May 1989, after the transfer disposition at issue, posted a recruitment notice for apprentices at the Seoul factory and hired two persons, but this was because, after all five of the employees subject to transfer, including the Plaintiff, refused the transfer, the Plaintiff and others filed suit while the remaining three resigned from the Defendant company, resulting in a shortage of the five persons who had been scheduled to fill positions at the Banwol factory, and the Defendant recruited apprentices to be sent to Banwol in order to make up for this shortage, training them at the Seoul factory; and at the time of the transfer disposition at issue, no labor union had been organized at the Defendant company's Seoul factory, and although the existing labor-management council had begun to become active from February 1988, the Plaintiff was not a labor-management council member representing either the employer side or the employee side.
Based on the above findings, the court below determined that the Defendant company, at the time of the transfer disposition at issue, had a business necessity to relocate the Seoul factory to Banwol promptly and therefore had to carry out the transfer disposition at issue; that prior to the disposition, the Defendant had sufficiently informed the Plaintiff of this and explained its necessity; and that although the transfer disposition at issue caused the Plaintiff to spend more time commuting than before, there was no great inconvenience since the Plaintiff could use the commuter bus provided by the Defendant company; in light of these points, the court below determined that the transfer disposition at issue against the Plaintiff was a lawful disposition that did not exceed the limits of legitimate personnel authority.
Upon examination of the record, there is no violation of the rules of evidence, as pointed out in the grounds of appeal, in the selection and evaluation of evidence by which the court below made the above factual findings, and under the factual relationship as found by the court below, the Defendant's transfer disposition at issue in this case cannot be deemed invalid in light of the legal principles set forth above. 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.
Supreme Court Justice Bae Seok (Presiding Justice), Park Woo-dong, Kim Sang-won, Yoon Young-cheol