[Plaintiff, Appellee]
[Defendant, Appellant]
[Judgment Below]
Seoul High Court Decision 87Na1199, rendered November 20, 1987
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The Court examines the grounds of appeal submitted by the Defendant's litigation representatives.
1. According to the reasoning of the judgment below, the court below found as follows: the Defendant company requires, as a qualification for employees of the packing room of the production department, an educational background of at least middle school graduation, and provides in its regulations that persons who obtained employment through fraudulent means, or who made false statements at the time of hiring, or who deceived the company as to their name or other material career matters, or who submitted a false resume, are to be dismissed for disciplinary cause; that the Plaintiff, who had not attended a regular middle school but had only completed a civic high school (godeung gongminhakgyo), was hired by the Defendant company upon the recommendation of Non-party Kim Nam-yong, the chairman of the Defendant company, and that several days after being hired, when the company demanded submission of a middle school graduation certificate, the Plaintiff forged such a certificate by altering the name, date of birth, and other entries on the Jeungpyeong Middle School graduation certificate belonging to his relative, Non-party 1, so as to make it appear to be his own, and submitted it to the company; that the Plaintiff continued to work for approximately eight years thereafter as an employee of the packing room of the Defendant company's production department, engaged in the work of attaching labels to and packing cosmetics containers manufactured by the Defendant company, during which time there was no indication that his insufficient education caused any impediment to his work; that while employed by the Defendant company, the Plaintiff was subjected to a disciplinary reduction of pay for one month on February 15, 1975, on the ground of unauthorized absence, but received commendations as a perfect-attendance employee in 1977 and 1978; that on July 30, 1982, the Plaintiff was elected chairman of the labor union of the Defendant company at a temporary delegates' assembly; that the Defendant company, alleging that in the process of the Plaintiff's election as union chairman he had disturbed order and work discipline within the company, spread false rumors, and caused harm to the company's internal operations and external reputation, including having received criminal punishment for an assault incident, disciplinarily dismissed the Plaintiff on August 11, 1982; that the Plaintiff, dissatisfied with this, filed a suit seeking confirmation of the invalidity of the disciplinary dismissal, and a judgment confirming the invalidity of the disciplinary dismissal was rendered on the ground that there was no legitimate cause for dismissal, which judgment became final; that the Defendant company, shortly after having thus disciplinarily dismissed the Plaintiff, around August 24, 1982, learned of the fact that the Plaintiff was not a middle school graduate and had forged and submitted a middle school graduation certificate, but did not take separate disciplinary action on this ground at that time; that after the judgment confirming the invalidity of the earlier disciplinary dismissal was rendered and became final on March 7, 1986, the Defendant company, without reinstating the Plaintiff, disciplinarily dismissed the Plaintiff again as of May 26, 1986, pursuant to a resolution of the Defendant company's personnel committee dated May 3, 1986, on the ground of the aforementioned forgery of the graduation certificate and fraudulent misrepresentation of qualifications in obtaining employment. Based on these findings, the court below determined that, in light of the facts that although the Plaintiff, upon being hired on the recommendation of Non-party Kim Nam-yong, then chairman of the Defendant company, had forged and submitted a graduation certificate, he had thereafter worked for approximately eight years as an employee of the packing room of the production department, engaged in the simple work of attaching labels to and packing cosmetics containers, without ever having been noted as causing any impediment to his work due to insufficient education, and had even received two commendations, and moreover had gained such trust among his fellow employees that he was elected chairman of the Defendant company's labor union, it could not be found that the Plaintiff's misrepresentation of his educational background had such an effect on the Defendant company's maintenance of managerial order or the relationship of trust between labor and management that the Defendant company would not have entered into an employment contract with the Plaintiff had it known of this fact beforehand; and that, even if this were not so, given that the Plaintiff, although he had not graduated from a regular middle school, had worked for as long as approximately eight years without any deficiency in the work ability or qualities required by the Defendant company of packing room employees in the production department, the defect existing at the time of hiring should be deemed to have been cured; and further, that even though the Plaintiff's misrepresentation of his educational background was accomplished by the criminal means of forging a public document, to dismiss the Plaintiff on that ground alone now, twelve years later—well beyond the statute of limitations for prosecution under the Criminal Act (형법)—would exceed the legitimate scope of the disciplinary authority; and moreover, that according to the findings above, there was room to view this disciplinary dismissal of the Plaintiff as having been carried out as a means of eliminating the Plaintiff's influence over the Defendant company's labor union, and therefore the Defendant company's disciplinary dismissal of the Plaintiff in this case was, in any respect, unlawful and unjust.
2. However, the reason an enterprise, in hiring a worker, requires a resume stating educational background or career history, or certificates thereof, is not merely to evaluate the worker's working ability, that is, labor capacity, but also because, for the formation of trust between labor and management and the maintenance of enterprise order, it is necessary to make a determination as to whether to hire based on a comprehensive assessment of the worker's whole personality, including intelligence, experience, level of education, honesty, and settledness and adaptability to the workplace; such materials serve as the basis for that determination. (Supreme Court Decision 87Daka2410, decided January 31, 1989)
According to the facts as found by the court below, the Defendant company requires an educational background of at least middle school graduation as a qualification for employees and requires the submission of a middle school graduation certificate as proof thereof; and the Plaintiff, despite not being a middle school graduate, misrepresented himself as a graduate and, in order to prove this, even forged and submitted a graduation certificate. It is evident, according to the empirical rules of common sense, that had the Defendant known of these facts at the time of hiring the Plaintiff, it would not have hired the Plaintiff, taking into account not only the aspect of the Plaintiff's working ability but also personal aspects such as honesty. Even if the Plaintiff had never caused any impediment to his work due to insufficient education or lack of ability, this may support the Plaintiff's working ability, that is, his labor capacity, but it cannot support the employment condition that must be considered from the personal aspect discussed above. Moreover, the fact that the Plaintiff continued to work for eight years after being hired shows, rather, that the misrepresentation of educational background and the forgery of documents and other fraudulent facts remained concealed without being discovered for such a long period, which can be seen as having had a negative effect on the Defendant company's maintenance of enterprise order; it is not appropriate to hold that the defect described above was cured by the mere passage of eight years.
Furthermore, the court below held that it exceeded the scope of the disciplinary authority for the Defendant to dismiss the Plaintiff on the ground of misrepresentation of educational background twelve years later, after even the statute of limitations period for forgery of a public document had passed; however, according to the facts found by the court below, the Defendant did not come to know of the Plaintiff's misrepresentation of his educational background until around August 24, 1982, and prior to that, on August 11, 1982, the Defendant had already disciplinarily dismissed the Plaintiff once on the grounds of obstruction of business and damage to reputation, and the Plaintiff filed a suit for confirmation of invalidity in response, in which a judgment in the Plaintiff's favor became final around March 7, 1986; it is thus evident that, in the meantime, the Defendant could not have dismissed the Plaintiff a second time on the separate ground of misrepresentation of educational background in duplication of the aforementioned disciplinary matter. Accordingly, the determination of the court below on this point is incorrect.
Furthermore, the court below pointed to the possibility that this disciplinary dismissal was carried out as a means of eliminating the Plaintiff's influence over the labor union; however, even granting that an intent to eliminate the Plaintiff's labor union activities may be inferred with respect to this disciplinary dismissal, insofar as the facts constituting the grounds for disciplinary dismissal as set forth above are clearly established and it was determined that the employment relationship could no longer be continued, and the dismissal was carried out on that basis, the dismissal cannot be deemed unlawful merely because an anti-union intent may be inferred.
3. In conclusion, the judgment below contains an error of law in misapprehending the legal principles concerning the requirements for disciplinary dismissal and the employer's power of dismissal, which affected the conclusion of the judgment, and this constitutes a ground for reversal under Article 12(2) of the Act on Special Cases Concerning the Expedition, etc. of Legal Proceedings (소송촉진등에관한특례법). The argument is therefore well-founded.
Accordingly, the judgment below is reversed and the case is remanded, this Court rendering judgment as stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Bae Seok, Justice Lee Hoi-chang, Justice Kim Ju-han