[Plaintiffs, Respondents] Plaintiff 1 and 6 others, Plaintiffs' Attorney Park Yong-il
[Defendant, Applicant] Daelim Industrial Co., Ltd., Defendant's Attorney Jeong Myeong-taek
[Original Judgment] Seoul High Court Decision 88Na45259, rendered August 16, 1989
[Order]
The application for permission to appeal is dismissed.
[Reasoning]
1. We examine the first ground for the application for permission to appeal.
The court below comprehensively considered the evidence cited and found that the Defendant company's Heavy Equipment Business Office (중기사업소) was merely one of several business divisions of the Defendant company, which conducts various businesses including civil engineering, construction, and other construction works, heavy equipment and automobile maintenance and rental business, maritime and land transportation business, and real estate development and housing construction business, and that even if the said Heavy Equipment Business Office was guaranteed a certain degree of independence in management, such circumstance alone could not render the said business office, which lacks legal personality, an independent enterprise or business entity. This determination is acceptable, and there is no violation of the rules of evidence therein. Therefore, the argument on this point is without merit.
2. We examine the second ground for the application for permission to appeal.
In cases of so-called "restructuring dismissal" (정리해고), where a business dismisses workers due to management circumstances, from the perspective of protecting the continuity of the employment relationship, it is required that: first, there must exist an urgent managerial necessity to the extent that the business's management would be jeopardized without the dismissal; second, the employer must have exhausted efforts to avoid dismissal, such as rationalization of management policy or work methods, prohibition of new hiring, use of temporary leave and voluntary retirement, and reassignment; third, reasonable and fair criteria for restructuring must be established and dismissal targets must be selected accordingly; and in addition, prior to dismissal, appropriate notice must be given to the labor union or the workers, and sincere consultation must be conducted with them (see this Court's Decision 87Daka2132, rendered May 23, 1989).
According to the reasoning of the judgment below, the court below comprehensively considered the evidence cited and found as follows: the Heavy Equipment Business Office under the Defendant company operated, among the various businesses conducted by the Defendant company, a Class 1 automobile maintenance business and a heavy equipment rental business; at the time of the dismissal in question, it held heavy equipment as described; due to the domestic and international construction industry recession at the time, there was overall management difficulty in the construction-related industry, and the business performance of the said Heavy Equipment Business Office was also on a declining trend; when only the heavy equipment management portion of the Defendant company's business performance was aggregated, a deficit as described arose; accordingly, in establishing its 1987 operating plan, the Defendant company's Heavy Equipment Business Office decided to sell or dispose of the heavy equipment as described and reduce the resulting surplus personnel, and sold dump trucks, truck mixers, etc. as described; in connection with the equipment to be sold, it decided to dismiss 31 workers, including drivers and maintenance workers for dump trucks and truck mixers, effective January 15, 1987, and dismissed 31 workers selected according to the dismissal criteria on that date, among whom the Plaintiffs were also selected as subjects of dismissal; and the number of units of heavy equipment sold or disposed of at the said Heavy Equipment Business Office after 1987 was as described. Based on these findings, the court below held as follows: the "urgent managerial crisis" that constitutes a requirement for restructuring dismissal must be determined by comprehensively examining the overall management situation of the Defendant company as a whole, and should not be determined based solely on the business performance of the said Heavy Equipment Business Office, which is merely one business division or office of the Defendant company; according to the evidence cited, the Defendant company's net income for the years 1984 through 1987 was in the amounts as described, and since the Defendant company's overall business performance, including the said heavy equipment management portion, showed a surplus during this period, even if the heavy equipment management division of the Defendant company's business divisions showed a deficit, and even if the Defendant company's net income scale showed a temporary declining trend between 1984 and 1986, such circumstances alone cannot be deemed to show that the Defendant company was in an "urgent managerial crisis"; furthermore, even if it is recognized that the Defendant company sold heavy equipment as described between 1987 and around February 1989, it can be seen that among the heavy equipment sold or disposed of as above, there was included aged equipment that was ordinarily disposed of regardless of downsizing management, and therefore the number of units of equipment disposed of alone cannot serve as an indicator for gauging an "urgent managerial crisis"; moreover, in light of the Defendant company's business performance, such equipment disposal and the accompanying personnel reduction stemmed merely from the purpose of downsizing management for temporary improvement of the balance sheet, and did not stem from an "urgent managerial crisis"; furthermore, even according to all the evidence submitted by the Defendant, there is no evidence to recognize that the Defendant company took measures such as reducing operations or reassignment to avoid the dismissal prior to the dismissal in this case. Accordingly, the court below held that the Defendant company's dismissal of the Plaintiffs in this case did not satisfy the requirements for restructuring dismissal and was therefore void.
Upon examining the evidentiary relationships adopted by the court below based on the record, the above fact-finding by the court below is acceptable, and in light of such facts, it is clear that the Defendant company's dismissal of the Plaintiffs in this case did not satisfy the requirements for so-called restructuring dismissal. Therefore, the judgment of the court below to the same effect is justified, and there is no error of misapprehension of the legal principles concerning "justifiable grounds for dismissal" under Article 27, Paragraph 1 of the Labor Standards Act (근로기준법) as argued. Therefore, the argument on this point is without merit.
3. We examine the third ground for the application for permission to appeal.
The court below found, based on the evidence cited, that five persons, namely Plaintiff 1, Plaintiff 3, Plaintiff 4, Plaintiff 5, and Plaintiff 6, after receiving notice of dismissal from the Defendant company on January 15, 1987, were urged to submit letters of resignation on the grounds that if they did not submit such letters, it would hinder their employment at other companies, and accordingly submitted letters of resignation and subsequently received severance pay, dismissal allowances, etc. Based on the above findings, the court below held that the said five plaintiffs, including Plaintiff 1, merely submitted letters of resignation and received severance pay in accordance with the Defendant company's request as part of the administrative process, on the premise that the restructuring dismissal in this case was valid, and thus it cannot be viewed that they expressed an intention to resign separately and independently of the said restructuring dismissal; therefore, it cannot be deemed that the said plaintiffs, knowing that the restructuring dismissal disposition was void, ratified it or waived their objection to its illegality. Upon examining the evidentiary relationships adopted by the court below in light of the record, the above fact-finding and determination by the court below are justified, and there is no error of violation of the rules of evidence or misinterpretation of the parties' intentions therein. Therefore, the argument on this point is also without merit.
4. Furthermore, it cannot be found that the judgment below contains any matter of significance concerning the interpretation of statutes; accordingly, the opinions of the participating Justices being unanimous in dismissing the application for permission to appeal, it is so decided as stated in the Order.
Supreme Court Justices: Kim Ju-han (Presiding Justice), Lee Hoe-chang, Kim Sang-won