[Plaintiff, Appellee]
[Defendant, Appellant] Samkyung Fashion Co., Ltd. (삼경복장주식회사), Litigation Representative Hanmi Joint Law Office, Attorneys in charge Yoo Kyung-hee and 3 others
[Original Judgment]
Seoul High Court Decision 87Na2759, decided January 18, 1988
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
As to the grounds of appeal,
With respect to Plaintiff 1, the court below found the facts as stated therein regarding the false statement of educational background and the fact of the disturbance and the distribution of leaflets within the Defendant company, and
held that the act of falsely stating educational background was merely a slight difference in the name of the school stated, and in light of the fact that Plaintiff was hired by the Defendant company simply as a production-line manual laborer and that educational background was not at all an issue at the time of hiring, it does not appear that, had the Defendant known of this fact in advance, it would not have entered into the employment contract with this Plaintiff, or would at least not have entered into the contract on the same terms; therefore this cannot constitute a lawful ground for dismissal. Furthermore, as to the above disturbance and distribution of leaflets, the court below held that this violated Article 9 of the collective agreement and could constitute grounds for disciplinary action, but
in order for the "justifiable cause" restricting the employer's right of dismissal under Article 27(1) of the Labor Standards Act (근로기준법) to be recognized, there must be a cause attributable to the employee to such an extent that, in light of common social norms, the employment contract cannot be continued
(see this Court's Decision 86Daka1875, decided April 14, 1987);
comparing the content of the employment contract between this Plaintiff and the Defendant company as found by the court below, and the content of the grounds for disciplinary dismissal or dismissal under the rules of employment (particularly Article 87 of the rules of employment), and examining together the circumstances leading to the distribution of the leaflets, the content of the leaflets and the time of distribution, and the place and time of the disturbance, the court below held that there was no "justifiable cause" for treating this as a ground for disciplinary dismissal.
As to Plaintiff 2, the court below held that the reassignment disposition taken by the Defendant company against this Plaintiff, as stated therein, differs from ordinary personnel reassignments such as transfer or relocation in that it often brings about a significant change in working conditions accompanied by disadvantages, and thus, in light of the purport of Article 657 of the Civil Act (민법), which provides for the personal nature of the rights and obligations under an employment contract, such reassignment, absent special circumstances, may only be made with consent given individually or pursuant to the employment contract, rules of employment, or collective agreement.
However, the court below found it insufficient to recognize either such consent, other than through Articles 85 and 87 of the rules of employment (which are to be regarded as invalid pursuant to Article 23 of the collective agreement), or any special circumstances that could legally justify the reassignment disposition.
This judgment of the court below is correct, and it cannot be said that there is an error of law as argued in the grounds of appeal. The precedents of this Court cited in the grounds of appeal are all clearly distinguishable from this case in their factual relationships, and thus cannot serve as appropriate precedent for this case.
Accordingly, the grounds of appeal are without merit, and the opinions of the participating Justices being unanimous in dismissing the appeal, it is so ordered as set forth in the Order.
Justice Kim Ju-han (Presiding Justice), Lee Hoi-chang, Bae Seok