[Plaintiff, Appellee]
[Defendant, Appellant] Tongil Co., Ltd., Attorneys Yoon Kyung-hyun and 1 other, Defense Counsel
[Lower Court Judgment] Busan High Court Decision 89Na8422 rendered November 29, 1990
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning] The grounds of appeal are examined.
(1) As to the First Ground of Appeal,
According to the reasoning of the lower court's judgment, the lower court found, based on the evidence cited therein, the following facts: Article 74 of the Defendant company's Rules of Employment (취업규칙) provides that when the company disciplines an employee, the company shall grant the employee an opportunity to explain the grounds for disciplinary action; Article 17 of the Defendant company's Disciplinary Regulations (징계규정) provides that the chairperson of the disciplinary committee shall notify the person subject to disciplinary action of the date, time, and place of the disciplinary committee meeting; and Article 20 of the said Disciplinary Regulations provides that the person subject to disciplinary action shall make statements before the disciplinary committee concerning the grounds for disciplinary action, and where there is an unavoidable reason preventing the person subject to disciplinary action from making statements before the disciplinary committee, an agent designated by that person may make statements on his or her behalf. The lower court further found that the Defendant company, on the ground that the Plaintiffs' absence from work from November 5, 1987 to November 25, 1987 constituted "unauthorized absence of three or more days in a month," a ground for disciplinary action under Article 10, Item 17 of the Defendant company's Disciplinary Regulations, convened a disciplinary committee at 10:30 on November 26, 1987 in the small conference room of the Defendant company's main building on the same day, and resolved to discipline the Plaintiffs; that on the same day, under the name of the chairperson of the Defendant company's disciplinary committee, notices of attendance were sent by mail to each Plaintiff's hometown address, stating the date and time of attendance as 10:00 on November 26, 1987, the place of attendance as the small conference room of the main building, and, as a matter for attention, that although an agent designated by the person subject to disciplinary action might make statements on his or her behalf where there existed an unavoidable reason, if neither the person concerned nor the designated agent attended at the designated date and time, it would be deemed that the person had no intention to make a statement, and the matter would be treated as an absence and disciplinary action would be taken; and that the Defendant company, at around 10:30 on the same day, convened the disciplinary committee at the small conference room of the Defendant company's main building to deal with the disciplinary matters concerning the Plaintiffs, resolved to dismiss each Plaintiff as a disciplinary measure, and, upon obtaining the approval of the Defendant company's representative director, dismissed each Plaintiff as a disciplinary measure.
Having found the above facts, the lower court determined, in light of the above factual relationship, that it could not be found that the Defendant company had granted the Plaintiffs an opportunity to explain the grounds for disciplinary action by delivering to each Plaintiff, at the latest immediately before the disciplinary committee meeting was convened, the above notices of attendance informing them of the date, time, and place of the disciplinary committee meeting, in disciplinarily dismissing the Plaintiffs. Accordingly, the lower court determined that the disciplinary dismissals of the Plaintiffs by the Defendant company dated November 26, 1987 were made without notifying the Plaintiffs, who were subject to disciplinary action, of the date, time, and place of the disciplinary committee meeting at which the resolutions for the said disciplinary dismissals were made, thereby failing to grant the Plaintiffs an opportunity to explain the grounds for disciplinary action, and that therefore, without any need to examine whether the grounds for disciplinary action existed or whether the disciplinary measure was appropriate, the dismissals were null and void.
Upon examining the record, the above factual findings and determination of the lower court are justified, and there is no error therein of misapprehension of the legal principles concerning disciplinary procedures or of insufficient examination, as alleged in the grounds of appeal. The precedent of this Court cited in the grounds of appeal concerns a factual relationship different from that of this case, and thus is not appropriate to be invoked in this case. Accordingly, this ground of appeal cannot be accepted.
(2) As to the Second Ground of Appeal,
The lower court found that Plaintiff 1 received the amount claimed by the Defendant as retirement pay on December 24, 1988, without expressing any intention, that Plaintiff 2 received such amount on February 11 of the same year, and that Plaintiffs 3, 4, and 5 each received such amount on February 23 of the same year. Having found these facts, the lower court nevertheless determined that, since it is clear from the record that the date on which the Plaintiffs filed the instant action was February 5, 1988, which precedes each of the above dates of receipt of retirement pay, it cannot be found that the Plaintiffs, by receiving the retirement pay, approved the disciplinary dismissals as valid or themselves expressed an intention to terminate the employment contracts, nor can it be found that the Plaintiffs approved as valid, vis-à-vis the Defendant company, the defects in the disciplinary dismissal procedure, or provided a basis of trust that such defects had been approved.
Upon examining the record, the above determination of the lower court is justified, and there is no error therein of misapprehension of the legal principles concerning the principle of good faith (신의칙) or the principle of estoppel (금반언의 원칙), as alleged in the grounds of appeal. The Decision of this Court, Case No. 88Daka19804, rendered September 29, 1989, cited in the grounds of appeal, concerns a case in which an action for confirmation of invalidity of dismissal was filed approximately eight months after the receipt of retirement pay, etc., which the company had deposited for repayment (변제공탁), and thus does not constitute an appropriate precedent for this case. Accordingly, this ground of appeal cannot be accepted either.
(3) As to the Third Ground of Appeal,
An employee who was unable to provide labor due to an unfair dismissal may claim wages from the employer pursuant to the main text of Article 538, Paragraph 1 of the Civil Act (민법), and in such a case, where the employee obtained a benefit by being relieved of his or her own obligation, such benefit must be reimbursed to the employer; provided, however, that the benefit to be reimbursed is limited to that which has a proximate causal relationship with the relief from the obligation.
According to the record, it is undisputed between the parties that Plaintiffs 1, 3, and 5 received amounts ranging from KRW 70,000 to KRW 325,000 per month from the labor union fund during part of the dismissal period, as alleged in the grounds of appeal; however, this cannot be regarded as a benefit having a proximate causal relationship with the Plaintiffs' relief from the obligation to provide labor. Accordingly, even if the lower court erred by omitting to rule on the Defendant's assertion of deduction of interim income (중간수입공제), such error cannot be found to have affected the outcome of the judgment. Furthermore, the assertion concerning deduction of retirement pay is a new argument raised for the first time before this Court, not having been raised up to the lower court, and thus cannot constitute a legitimate ground of appeal. None of the arguments in this ground of appeal can be accepted.
(4) 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 participating Justices.
Presiding Justice Lee Jae-seong, Justice Lee Hoi-chang, Justice Bae Man-woon, Justice Kim Seok-su