[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
As to the grounds for appeal by counsel for the Defendant
1. According to the reasoning of the judgment below, the court below, upon consideration of the adopted evidence, found the following facts: that around August 12, 1987, the Plaintiff, together with other employees of the Defendant company, produced and distributed the leaflet indicated in the lower judgment; that the Plaintiff also distributed the leaflet indicated in the judgment on August 27 of the same year; that during the strike, the Plaintiff, as an ordinary union member, actively participated therein and, moreover, posted a wall poster (daejabo) containing content criticizing the government on the factory gate of the Defendant company; and that on September 10, 1987, the Defendant company, in concluding a collective agreement with Cho Han-o, the acting chairman of the labor union, agreed not to pursue any civil or criminal liability against union members for incidents occurring during the period of the sit-in, and thereafter did not impose any disciplinary action against Cho Han-o, Jeong Dae-hyeon, and others who had led the strike. The court below further rejected the Defendant's allegations that the Plaintiff had written graffiti criticizing the Defendant company, slandering superiors, and inciting workers; that the Plaintiff had distributed leaflets in the name of employees dismissed by the Defendant company; and that the Plaintiff had led the strike in connection with outside forces and had acted not for the purpose of a labor movement but for the purpose of bankrupting the Defendant company. The above factual findings of the court below are acceptable, and it cannot be said that there was an error in violation of the rules of evidence, as argued in the grounds of appeal, in the process thereof.
2. The court below further determined as follows: that the Plaintiff's participation in the strike as found above and the unauthorized posting of the wall poster during the strike period fall under Article 110, Item 15 and Article 109, Item 2 of the Defendant company's Rules of Employment (취업규칙); however, since the Defendant company had agreed, by the collective agreement of September 10, 1987, not to hold union members liable, the Defendant could not dismiss the Plaintiff for disciplinary reasons on that ground; and that although the Plaintiff's unauthorized distribution of leaflets and the incitement to strike resulting therefrom fall under Article 109, Item 2 and Article 110, Item 13 of the said Rules of Employment, it would be reasonable to view the purport of the collective agreement—under which all liability against union members for incidents during the sit-in period was waived—as covering not only the acts during the sit-in period itself but also preparatory acts and instigating acts forming an integral part of the sit-in, and thus the Defendant could not dismiss the Plaintiff for disciplinary reasons based on such acts forming an integral part of the sit-in; and that even if the purport of the collective agreement were not so construed, the content of the leaflet distributed by the Plaintiff around August 12, 1987 could not be seen as inciting a strike, and although the leaflet distributed on the morning of August 27 of the same year contained content that could be seen, in part, as inciting a strike, in light of various circumstances—including the fact that under the Defendant company's Rules of Employment, unauthorized distribution of leaflets is, in principle, grounds for salary reduction or suspension, and is made grounds for disciplinary dismissal only exceptionally—the Defendant's disciplinary dismissal of the Plaintiff exceeded the bounds of the Defendant's discretion and was therefore void.
The above determination of the court below is justified, and there is no illegality of contradictory reasoning as argued in the grounds of appeal.
Where the Rules of Employment, in providing for grounds for disciplinary action, provide that multiple grades of disciplinary sanctions are possible for the same disciplinary ground, or provide that, for a certain disciplinary ground, a disciplinary sanction of a certain type shall apply in principle while allowing, exceptionally, a heavier sanction depending on the circumstances, the choice as to which disciplinary sanction to select among these belongs to the discretion of the person having the authority to impose discipline.
However, such discretion is not left to the arbitrary and expedient discretion of the person having disciplinary authority; there must exist a balance between the disciplinary ground and the disciplinary sanction that is deemed reasonable in light of common social conceptions, and imposing a harsh sanction for a minor disciplinary ground must be held void as an abuse of rights.
According to Article 109 of the Defendant company's Rules of Employment, an act of distributing printed materials within the company without the company's approval is subject to salary reduction or suspension, but disciplinary dismissal is possible depending on the circumstances; and Article 110, Item 13 provides that a person who incites a strike may be disciplinarily dismissed. The court below determined, in effect, that with respect to the Plaintiff's conduct falling under the aforesaid Article 110, Item 13, disciplinary action could not be taken because of the collective agreement waiving liability, and that with respect to the Plaintiff's conduct falling under Article 109, in light of the various circumstances stated in the judgment, such conduct could not be regarded as sufficiently egregious to warrant disciplinary dismissal, and therefore the Defendant's disciplinary dismissal exceeded the bounds of discretion and was void. In light of the legal principles set forth above, the judgment of the court below is justified. The argument is without merit.
Accordingly, 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.
Justice Yoon Young-cheol (Presiding Justice), Park Woo-dong, Lee Jae-seong, Kim Yong-jun