[Plaintiff (Selected Party), Appellant] Lee Jeong-gyu and 1 other
[Defendant, Appellee] Gongyeongsa Co., Ltd., Litigation Representative Attorney Hong Gi-bae
[Judgment Below]
Seoul High Court Decision 87Na4012 rendered on November 30, 1988
[Order]
All appeals are dismissed.
The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning]
The grounds of appeal are examined (the supplementary brief on the grounds of appeal is considered only to the extent it supplements the grounds of appeal).
(1)
In order for a so-called restructuring dismissal (layoff), whereby a business dismisses employees due to management-related circumstances, to be deemed to have a justifiable reason as prescribed in Article 27, Paragraph 1 of the Labor Standards Act (근로기준법), there must exist an urgent managerial necessity. This refers to a situation in which, unless the enterprise carries out a restructuring dismissal of a certain number of employees, it would be unable to continue its business due to deteriorating management conditions, or at least would face a probability of being placed in a seriously difficult financial situation.
According to the facts as determined by the court below, the Defendant is a company whose main business purposes are the production and sale of aggregate, and the manufacture and sale of ready-mixed concrete and asphalt concrete. In connection with the Han River Comprehensive Development Project in the Seoul area, which was implemented in the second half of 1982, the Defendant established the No. 2 Section Business Office (located at Nanjido, Mapo), the No. 4 and 5 Section Business Office (located at Seobinggo, Yongsan), and the No. 10 Section Business Office (located at Amsa-dong, Gangdong-gu) pursuant to linkage contracts with the companies constructing the development project, in order to extract aggregate, and operated aggregate production and sales businesses at each of these business offices. However, as the Han River Comprehensive Development Project in the Seoul area was completed around September 20, 1986, the Defendant had no choice but to suspend or scale down its aggregate production business within the Han River zone concerned. In preparation for the aggregate extraction to be conducted under the Han River Comprehensive Development Project in the Gyeonggi-do area, scheduled to commence construction from 1987, the Defendant was in a position where it would only be able to operate a single business office, the Misa Business Office located at Mangwol-ri, Dongbu-eup, Gyeonggi-do. Accordingly, with respect to the No. 2 Section Business Office, where aggregate extraction was still ongoing at the time of completion of the Han River Comprehensive Development Project in the Seoul area, the Defendant decided to place the corresponding facilities and personnel on standby for use in the aggregate production business under the Han River Comprehensive Development Project in the Gyeonggi-do area; however, as for the No. 4 and 5 Section Business Office, where aggregate extraction had been completely finished, the Defendant was compelled to close it, thereby making a reduction in personnel unavoidable. Furthermore, as a result of the closure of the No. 4 and 5 Section Business Office of the Han River project and the resulting substantial reduction in the scale of that portion of the business, the Defendant's aggregate extraction business saw its number of skilled workers decrease from 488 to 413, a reduction of 75 persons, and its sales revenue decreased from approximately 13 billion won in 1986 to approximately 8.4 billion won in 1989, a decrease of 4.6 billion won. This reduction in business scale was not merely a temporary deterioration in management conditions or a decrease in orders received. Given these circumstances, it must be found that the Defendant company was in a situation of urgent managerial necessity requiring a restructuring dismissal, and the judgment below rendered to this effect is deemed to be justified and is accepted.
(2)
As to whether the Defendant took the necessary measures to avoid or prevent the restructuring dismissal, the court below found as follows: As the Defendant closed the No. 4 and 5 Section Business Office within the Han River Comprehensive Development Project zone, of the 103 regular staff members at that business office site, the Defendant reassigned 17 administrative staff to the head office and other business office sites, 39 extraction department workers and 1 bus driver to the No. 2 Section Business Office, 16 gravel and sand sorting workers to the newly established Dongbu Factory in Dongbu-eup, Gwangju-gun, Gyeonggi-do (established to produce ready-mixed concrete, asphalt concrete, etc.), and 5 maintenance workers to the maintenance factory located in Seongsu-dong. The Defendant retained 1 excavator operator, 1 crane operator, and 6 security guards at the site to organize and guard the No. 4 and 5 Section Business Office site where the extracted aggregate was stockpiled. Of the 7 dump truck drivers, 2 were treated as voluntary resignations, 2 were retained at the No. 4 and 5 Section Business Office for site organization, and the remaining 3 were dismissed. Of the 10 payloader operators, 1 was treated as a voluntary resignation, and the remaining 9 (of whom 8 are the Plaintiffs) were dismissed, and 38 temporary/daily workers were dismissed. The court below further found that the reason only payloader and dump truck drivers were singled out for dismissal was that other business sites also had a surplus of payloader and dump truck drivers, such that these employees could not be reassigned to other business sites, nor could they be replaced with similar other job types; moreover, the payloaders that they had operated were either replaced with older payloaders or left idle. Taking these findings together with the unavoidable circumstances of the Defendant's reduction in business scale as recognized above, the court below held that the Defendant's restructuring dismissal had a justifiable reason. Upon examination of the record, the above findings of fact and judgment of the court below are justified, and there is no violation of the rules of evidence or misapprehension of law as alleged in the grounds of appeal. This argument is without merit.
(3)
Accordingly, all appeals are dismissed, and the costs of the appeal are to be borne by the losing Plaintiffs. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Supreme Court Justice Park Woo-dong (Presiding Judge), Lee Jae-seong, Yoon Young-cheol, Kim Yong-jun