[Plaintiffs, Appellants] Plaintiff 1 and 2 others
[Plaintiff, Appellee] Plaintiff 3, Plaintiffs' Attorney Park Doo-hwan
[Defendant, Appellant and Appellee] Doosan Yueop Co., Ltd., Attorney Jeong Gwang-jin
[Judgment Below] Seoul High Court Decision 87Na2840 rendered December 23, 1987
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. We examine the grounds of appeal by the counsel for Plaintiff 1, Plaintiff 3, and Plaintiff 4.
(1) According to the reasoning of the judgment below, the court below premised its decision on the following: although Articles 94 and 95, Paragraphs 1 and 2 of the Labor Standards Act (근로기준법) require an employer to prepare rules of employment, hear the opinions of employees, and report the same to the Minister of Labor with a written document containing such opinions attached, except in cases where existing rules of employment are amended to the disadvantage of employees without their consent, the mere fact that the employer failed to follow procedures such as hearing the opinions of employees when preparing or amending the rules of employment does not immediately render the rules of employment invalid. Based on this premise, the court below found that there was no evidence that the provisions on automatic retirement at issue in this case, contained in the Defendant company's rules of employment or personnel regulations, had been amended to a condition less favorable than at the time such regulations were originally established. Accordingly, the court below rejected the Plaintiffs' argument that the regulations, having been prepared or amended without hearing the opinions of the employees, were invalid, on the ground that such argument was without merit.
(2) Under Article 95, Paragraph 1 of the Labor Standards Act, when preparing or amending rules of employment, an employer must hear the opinions of the labor union, if there exists a labor union organized by a majority of the employees at the place of business concerned, or, if there is no labor union organized by a majority of the employees, the opinions of a person representing a majority of the employees. This provision is intended to respect the opinions of employees and reflect them in the preparation or amendment of the rules of employment; the provision requiring this opinion-hearing procedure is merely a directory provision and not a mandatory provision affecting validity, and therefore failure to follow this procedure does not render the rules of employment invalid.
However, where the preparation or amendment of the rules of employment has the effect of depriving employees of vested rights or interests they already possess and imposing disadvantageous working conditions, such amendment requires the consent of the group of employees who had been subject to the previous working conditions or rules of employment, obtained through a method of collective decision-making by that group; rules of employment prepared or amended without such consent must be deemed invalid. However, where a change in working conditions is one that may be recognized as reasonable according to social norms even without the consent of the employees, it is proper to view such change as valid even without such employee consent (see this Court's Decision 78Da1046 rendered September 12, 1978).
According to Exhibit B No. 4-2 (Personnel Regulations) and No. 4-3 (Employment Regulations) adopted by the court below, the Personnel Regulations concerning the appointment and dismissal of the Defendant company's employees form part of the rules of employment, and the Personnel Regulations were established on December 31, 1981, and amended respectively in 1984 and 1985. Article 11 of the current Personnel Regulations classifies employee dismissal into voluntary resignation, retirement upon reaching retirement age, automatic dismissal, discharge, and dismissal due to company circumstances; among these, automatic dismissal is further classified into 11 grounds, including death. It can be recognized that unauthorized absence without notice or absence exceeding 7 days where the reason for absence is not deemed unavoidable—at issue in this case—is prescribed as one of the grounds for automatic dismissal. Comparing the provisions on automatic dismissal in the current Personnel Regulations with those in the 1984 amended Personnel Regulations that preceded it, it can be recognized that the provision concerning the grounds for unauthorized absence without notice, etc., at issue in this case, has remained unchanged.
However, upon examination of the record, it cannot be ascertained whether the provision on automatic dismissal due to unauthorized absence without notice, etc., at issue in this case, was newly established at the time the Personnel Regulations were first enacted on December 31, 1981, or was newly established at the time of the 1984 amendment. Whether such a provision was newly established at the time the Personnel Regulations were first enacted, or newly established at the time of a subsequent amendment, since such a provision constitutes a working condition disadvantageous to employees, in order to newly incorporate it as part of the rules of employment, prior consent must be obtained through a method of collective decision-making by the employees, and only then would it be effective.
As to whether prescribing, in the employment regulations, the provision on automatic dismissal based on grounds such as unauthorized absence without notice at issue in this case is something that may be recognized as reasonable according to social norms even without the consent of the employees, we examine as follows: among the grounds for automatic dismissal enumerated in Article 11 of the above Personnel Regulations, for example, a person who has died, a person against whom a sentence of imprisonment or greater has been finalized, a person declared incompetent or quasi-incompetent, a person declared bankrupt, a person whose civil rights have been suspended or forfeited, and the like—there would be nothing unreasonable in treating these as grounds for dismissal regardless of the employees' consent. However, as for the case at issue here, where absence without notice or absence without unavoidable cause exceeds 7 days, there is not only room for disagreement between the employer and employees as to whether the absence was without notice and whether there was unavoidable cause, but such absence is, in essence, no different from a ground for disciplinary action, such as neglect of duty or violation of the company's service regulations. It would be unreasonable for automatic dismissal to occur based solely on the employer's unilateral finding of fact, and this constitutes a working condition disadvantageous to employees. Therefore, it is difficult to view the newly incorporating of such a provision into the rules of employment without the consent of the employees as reasonable according to social norms.
(3) In conclusion, the court below should have examined and determined whether the provision on automatic dismissal due to unauthorized absence without notice, etc., at issue in this case was newly established at the time the Personnel Regulations were first enacted or was newly established at the time of a subsequent amendment, and whether the consent of the employees, obtained through a method of collective decision-making, was obtained at the time such provision was newly established. Nevertheless, without doing so, the court below carelessly concluded that there was no evidence that the provision on automatic dismissal had been amended to the disadvantage of the employees compared to the time the Personnel Regulations were first enacted. This constitutes an illegality affecting the judgment due to insufficient examination and negligence in the assessment of evidence, and this falls under the grounds for reversal set forth in Article 12, Paragraph 2 of the Act on Special Cases Concerning the Expedition, etc. of Legal Proceedings (소송촉진등에관한특례법).
2. We examine the grounds of appeal by the Defendant's counsel.
(1) According to the reasoning of the judgment below, the court below found that, in consideration of the special nature of the work of drivers, the Defendant company, in principle, has drivers work consecutively for about 3 days and then rest continuously for about 3 days; and that Plaintiff 2 was absent for 16 days out of the working days from April 1986 to June 17 of the same year, among which the number of consecutive absent days was 9 days from May 22, 1986 until the date of dismissal, June 17 of the same year. The court below then determined as follows: that the absences occurring before April 28, 1986 due to labor union activities were matters that the Defendant company had impliedly agreed not to raise as an issue, since the Defendant company and its labor union had agreed to end the labor-management dispute up to that point and exchanged a written agreement; and that since Non-Party, the Defendant company's Vehicle Management Section Chief, met with the Plaintiffs on June 13, 1986 and ordered them to report to work starting on the 18th of the same month, absent other circumstances, the period from the 13th to the 17th of the same month should be regarded as having been designated as off-duty days, and therefore the Plaintiffs' failure to report to work during that period cannot be treated as absence at issue; and further, that excluding the days not recognized as unauthorized absence as stated above, the number of absent days does not exceed 7 days, and therefore the Defendant company's automatic dismissal of the above Plaintiff was in violation of the Defendant company's Personnel Regulations.
(2) However, first examining the court below's method of calculating the number of absent days, the court below calculated the above Plaintiff's number of absent days based on the driver's work pattern of the Defendant company's drivers working consecutively for about 3 days and then resting continuously for about 3 days; however, since the above 3-day off-duty period is to be interpreted as rest recognized in the case of normal work for 3 days, in calculating the number of absent days of a person who has been continuously absent for a certain period without performing normal work, the number of off-duty days premised on 3 days of normal work should not be considered and deducted.
Next, the court below determined that, since Non-Party, the Vehicle Management Section Chief, ordered the above Plaintiff on June 13, 1986 to report to work from the 18th of that month, the period from the 13th to the 17th of that month was designated as off-duty days. However, according to the descriptions of Exhibit B No. 1-2 and Exhibit B No. 2-2 (each a notice), the establishment and receipt of which the above Plaintiff acknowledges, and the testimony of Non-Party, a witness in the court below, it can be recognized that the Defendant company sent notices to the above Plaintiff on two occasions, May 23 and May 27, 1986, stating that measures would be taken in accordance with the company regulations if the Plaintiff did not perform normal work; nevertheless, the above Plaintiff and others refused to perform normal work while raising 7 demands, and accordingly, the above Non-Party, the Vehicle Management Section Chief, personally met with the above Plaintiff and others to urge their return to work, telling them to first report to work and be assigned to heavy equipment duty, and to work starting June 8, 1986. According to the above recognized facts, the fact that the above Plaintiff, while refusing to perform normal work and already being in a state of absence, was personally told by the above Non-Party, who was urging normal work, to work from the 18th of that month, cannot be regarded as the Defendant company having designated the period up to the 17th as off-duty days.
(3) In conclusion, the court below's calculation of the number of absent days as described above constitutes an illegality affecting the judgment due to errors in the interpretation of the Defendant company's Personnel Regulations and in the assessment of the content of the evidence, and this falls under the grounds for reversal set forth in Article 12, Paragraph 2 of the Act on Special Cases Concerning the Expedition, etc. of Legal Proceedings. Therefore, this ground of appeal has merit.
3. Accordingly, the judgment below is reversed and the case is remanded, and it is so decided as set forth in the Order by the unanimous opinion of the Justices involved.
Presiding Justice Bae Seok, Justice Lee Hoe-chang, Justice Kim Ju-han