[Order]
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. We examine the grounds of appeal raised by the Plaintiffs' litigation representative.
(1) Ground of Appeal No. 1
According to the reasoning of the judgment below, the court below held that, since the method of remedy for dismissal on the ground of unfair labor practice is prescribed such that one may file a petition for remedy with the Regional Labor Relations Commission pursuant to the Trade Union Act (노동조합법), and, with respect to the remedial order or the decision of dismissal thereon, may file a petition for reexamination with the National Labor Relations Commission, and thereafter may bring an administrative litigation against the reexamination ruling, the remedial procedure for dismissal on the ground of unfair labor practice is a matter for administrative litigation, and a claim such as confirmation of invalidity of dismissal cannot be brought in civil litigation; accordingly, the court below rejected the Plaintiffs' assertion of invalidity of dismissal on the ground of unfair labor practice as being without merit.
However, the procedure for a remedial order by the Labor Relations Commission against the employer, as prescribed in Articles 42 and 43 of the Trade Union Act, is a procedure for relief of rights under public law with respect to disadvantageous dispositions such as dismissal that constitute unfair labor practices, and does not directly affect the private-law legal relationship between the employer and the worker. Accordingly, it must be held that a worker may, separately from the above procedure for relief of rights, seek relief of rights by disputing the private-law effect of a disadvantageous disposition such as dismissal, on the ground that it constitutes an unfair labor practice, through civil litigation.
In this respect, the judgment below misapprehended the legal principles concerning remedial orders for unfair labor practices, and this error affected the judgment, and thus this ground of appeal has merit.
(2) Ground of Appeal No. 2
Where a company's employment rules or disciplinary regulations provide that disciplinary action against an employee is to be taken through a resolution of the disciplinary committee, the propriety of the disciplinary action must be judged based on the grounds relied upon as grounds for discipline by the disciplinary committee, and it is improper to judge the propriety of the disciplinary action by including grounds for discipline that were not discussed by the disciplinary committee.
According to the reasoning of the judgment below, the court below, as one of the grounds for its determination that the disciplinary dismissal in this case against Plaintiffs 1, 2, and 3 was justified, cited the facts that, at the time of employment, Plaintiff 1 falsely stated in his resume that his educational background was high school graduation when in fact he was a college graduate; that Plaintiff 2 falsely inflated by one year his career of employment at non-party Dongbang Electronics Company, thereby being credited by the Defendant company with one additional year of career; and that Plaintiff 3 concealed his career of employment at non-party Namhwa Electronics Co., Ltd., where there had been labor disputes.
Concealment of educational background or career, or false statements in a resume, as found by the court below, are acts that may affect the formation of trust between labor and management, and where it is found that, had the Defendant known of such misrepresentation of prior history, it would not have employed the Plaintiffs concerned, such acts may constitute a legitimate ground for disciplinary dismissal. However, according to the description in Defendant's Exhibit 4-1 (record of referral to the personnel committee) and Defendant's Exhibit 5-1 (minutes of the personnel committee), among the grounds for discipline found against Plaintiff 1 by the personnel committee, which also served as the disciplinary committee of the Defendant company, the above concealment of educational background was not included at all; and although the above misrepresentation or concealment of career was included among the grounds for discipline discussed with respect to Plaintiffs 2 and 3, it is found that, with respect to Plaintiff 3, the Defendant continued to employ him after receiving from him a written statement acknowledging the concealment of career and asking for forgiveness. Accordingly, it must be said that the court below's act of including, as a ground for discipline against Plaintiff 1, the fact of concealment of educational background, which was not among the grounds for discipline found by the personnel committee, was unlawful; and further, that the court below's act of finding Plaintiff 3's concealment of career to be a ground for discipline, even though the Defendant, upon discovering it, had continued to employ him and thus could no longer rely on it as a ground for dismissal, was likewise unlawful. To this extent, the argument has merit.
(3) In conclusion, the portion of the judgment below concerning the loss by Plaintiffs 1, 2, and 3 contains grounds for reversal as set forth in Article 12(2) of the Act on Special Cases Concerning Expedition of Legal Proceedings (소송촉진등에관한특례법), and thus cannot be sustained as it stands.
2. We examine the grounds of appeal raised by the Defendant's litigation representative.
(1) Ground of Appeal No. 1
The argument is that the judgment below erroneously determined that the trade union asserted by the Plaintiffs had been lawfully established. However, since the judgment below did not determine whether the trade union in question was lawfully established, nor did it determine the Defendant's liability on the premise that it was lawfully established, this ground of appeal is without merit.
(2) Ground of Appeal No. 2
According to the reasoning of the judgment below, the court below determined as follows: among the grounds for discipline referred to the personnel committee against the Plaintiffs by the Defendant company, the ground that, from around 07:50 to about 40 minutes on September 17, 1984, the Plaintiffs disturbed order within the company and caused delay in work, thereby causing damage to the company, by distributing a leaflet entitled "Labor Union News No. 1" to workers or inserting it into individual clothing lockers in the workers' changing room, cannot be recognized; rather, the delay in work occurred because the Defendant company assembled the workers on the athletic field in order to prevent the Plaintiffs from distributing the leaflet and collected the leaflets distributed by the Plaintiffs. Accordingly, the court below determined that it was unlawful for the Defendant to hold the Plaintiffs responsible for the delay in work allegedly caused by the Plaintiffs' distribution of the leaflet and to use it as a ground for dismissal.
Upon examination of the record (in particular, the testimony of witness Song Yong-dal for the Defendant at the first instance), the determination of the court below—that the direct cause of the delay in work lay more in the Defendant's above acts of preventing and collecting the leaflet distribution than in the Plaintiffs' act of distributing the leaflet—is acceptable. However, according to the descriptions in Defendant's Exhibit 4-1 (record of referral to the personnel committee) and Plaintiffs' Exhibit 5 (employment rules), the Defendant, as grounds for discipline against the Plaintiffs, expressly cited not only the delay in work caused by the distribution of the leaflet, but also the fact that the content of the leaflet distorted the truth and damaged the honor of the company, stating that these constituted grounds in violation of Articles 55 and 102 of the employment rules. Article 55 of the said employment rules lists, as grounds for dismissal, a person who disturbs order within the company and thereby causes disruption to work or damage (Item 7), and a person who fabricates or disseminates false facts, thereby impairing labor-management cooperation (Item 3); and Article 102 of the same rules likewise lists, as a ground for discipline, a person who fabricates or disseminates false facts, thereby impairing labor-management cooperation (Item 9).
In the end, it is clear that the above grounds for discipline against the Plaintiffs included, in addition to the causing of work delay through leaflet distribution, the ground that the distribution of a leaflet with false content disturbed order within the company and impaired labor-management cooperation. Accordingly, the court below ought to have examined and determined whether the content of the above leaflet was indeed false and whether its distribution was such as to disturb order within the company and impair labor-management cooperation at the Defendant company; however, there is no trace whatsoever that the court below examined or determined this point, and thus it must be said that the judgment below is unlawful in this respect as well.
(3) In conclusion, it is clear that the portion of the judgment below concerning the loss by the Defendant contains grounds for reversal as set forth in Article 12(2) of the Act on Special Cases Concerning Expedition of Legal Proceedings, and thus cannot be sustained as it stands, without any need to determine the remaining grounds of appeal.
3. Accordingly, the judgment below is reversed, and the case is remanded to the court below, by the unanimous opinion of the participating Justices, as set forth in the Order.
Justices Bae Seok (Presiding Justice), Lee Hoi-chang, Kim Ju-han