[Plaintiff, Appellee]
[Defendant, Appellant] Harim Tongsang Co., Ltd., Attorney Kim Jin-woo, Counsel for the Defendant
[Judgment Below]
Seoul High Court Decision 88Na29271 rendered on January 23, 1989
[Order]
The part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning]
As to the grounds of appeal argued by Defendant's counsel:
According to the reasoning of the judgment below, the court below premised its decision on the undisputed facts that the Plaintiff, a production-line employee of the Defendant company, failed to report to work for three days from January 12, 1988 to January 14, 1988, and that on January 18 of that year, the Defendant disciplinarily dismissed the Plaintiff on the ground that the above absence constituted "unauthorized absence for three or more days," which is a ground for disciplinary dismissal under the Defendant company's rules of employment (취업규칙).
In determining the dispute over whether the Plaintiff's three consecutive days of absence as described above constituted "unauthorized absence for three or more days" as the ground for disciplinary dismissal at issue in this case, the court below, based on the evidence it adopted, found the following facts:
Article 13, Paragraph 2 of the Defendant company's rules of employment provides that unauthorized absence for three or more days is one of the grounds for disciplinary dismissal, and Article 8, Paragraph 2 provides that when an employee is unable to report to work due to illness or other unavoidable reasons, the employee must submit a written report of absence by noon, and that failure to submit a report of absence or to report the reason therefor and obtain approval shall be treated as unauthorized absence; provided, however, that where there is an unavoidable reason, if the employee reports by telephone or orally and obtains prior approval, and thereafter reports to work, the employee shall submit a written report of absence with an attached statement of reasons.
Meanwhile, the court below found that, prior to the above absence, on the morning of January 12, the Plaintiff, through Cho Yong-jin (this appears to be a clerical error for Cho Young-jin), an employee of the Defendant company, orally reported to Shin Seung-hak, the foreman of the work team to which the Plaintiff belonged, that the Plaintiff would be absent due to family matters; that the Plaintiff made a similar oral report the following day in the same manner; and that on January 14, the Plaintiff personally telephoned Park Jun-yong, an assistant manager in the Defendant company's production department, and reported that he would be absent until that day and, since the following day was the company's founding anniversary and thus a holiday, he would report to work on January 16, the day after that, and that the Plaintiff obtained the approval of the said Park Jun-yong.
In light of these facts, the court below determined that the Plaintiff's above absence, which the Defendant asserted as the ground for disciplinary dismissal, did not constitute "unauthorized absence for a continuous period of three days" as a ground for disciplinary dismissal.
However, the above determination by the court below cannot but be regarded as a case involving a contradiction in its reasoning. That is, as found by the court below in the latter part of its reasoning, even if the Plaintiff made an oral report of absence, whether through another person or by telephone, and obtained approval therefor, if the Plaintiff did not, upon later reporting to work, submit a written report of absence with an attached statement of reasons and thereby obtain subsequent approval, then, in light of the facts found by the court below in the former part of its reasoning, the Plaintiff's absence could only be treated as unauthorized absence. Nevertheless, without any further explanation, the court below determined that the Plaintiff's three consecutive days of absence did not constitute unauthorized absence as a ground for disciplinary dismissal, thereby committing an unlawful act of rendering a decision whose reasoning is internally contradictory.
Meanwhile, Article 27, Paragraph 1 of the Labor Standards Act (근로기준법) provides that an employer may not impose a penalty such as dismissal on an employee without justifiable cause, thereby restricting an employer from freely dismissing an employee. Here, "justifiable cause" refers to a case where there exists a cause attributable to the employee to such an extent that, in light of common social norms, the employment contract cannot be continued, or where there is an unavoidable managerial necessity. Therefore, where a collective agreement, rules of employment, or the like contains provisions concerning dismissal, so long as such provisions do not violate the aforementioned Labor Standards Act and thereby become invalid, a dismissal made in accordance therewith shall be deemed a dismissal with justifiable cause (see Supreme Court Decision 86Daka1875 rendered on April 14, 1987; Supreme Court Decision 89Daka5475 rendered on September 26, 1989).
As seen above, since the Plaintiff was absent without authorization for three consecutive days, this constitutes a ground for disciplinary dismissal as prescribed in the Defendant company's rules of employment, and there is no basis for finding that the above provision of the rules of employment violates the Labor Standards Act and is thus invalid. In addition, the first instance court found, based on the evidence, that the Plaintiff was also absent without authorization for three days from June 18 to June 20, 1987, for six days from July 20 to July 25 of the same year, and for one day on January 5, 1988. Considering these facts together, the Plaintiff's above three consecutive days of absence appears to constitute a cause attributable to the employee to such an extent that the employment contract could not be continued, and thus there appears to have been justifiable cause for the Defendant's dismissal of the Plaintiff.
Therefore, the above unlawfulness in the form of contradictory reasoning in the judgment below affected the outcome of the judgment, and this falls under Article 12, Paragraph 2 of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (소송촉진등에관한특례법), and thus the argument is well-founded.
Accordingly, without deciding on the remaining grounds of appeal, the part of the judgment below against the Defendant is reversed, and this part of the case is remanded to the court below, this judgment being rendered pursuant to the unanimous opinion of the Justices participating in the decision, as stated in the Order.
Justice Yoon Young-cheol (Presiding Justice), Park Woo-dong, Lee Jae-sung, Kim Yong-jun