[Plaintiff, Appellee]
[Defendant, Appellant] Hanil Cement Industry Co., Ltd. (한일시멘트공업주식회사), Attorney Park Sin-il, Litigation Representative
[Judgment Below] Daegu High Court Decision 86Na937 rendered on May 1, 1987
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
As to Ground No. 1,
Even if Article 84(1) of the Defendant company's employment rules (취업규칙) provides only that a request for reexamination may be filed within three days if there is an objection to a disciplinary decision, where Article 17(2) of the Collective Agreement (단체협약), which takes precedence over the employment rules, provides that "where a union member subject to disciplinary action has an objection to the company's disciplinary decision, he/she may file a request for reexamination through the union," and Article 12 of the Disciplinary Committee Regulations (징계위원회규정), established pursuant to the employment rules, also provides "where the person subject to discipline has proposed reexamination through the labor union with respect to the grounds for reexamination,"
then, if the person who received the disciplinary action filed a request for reexamination with the labor union, which is the channeling institution for reexamination, within the period for requesting reexamination, this should be regarded as compliance with the period for requesting reexamination, and it is not to be construed that the request for reexamination must necessarily reach the Defendant company through the labor union within that period.
Accordingly, the court below's determination—that although the Plaintiff, after receiving notice of the disciplinary decision, lawfully submitted a written request for reexamination containing the grounds for objection to the above disciplinary action to the chief of the Busan Factory Branch of the labor union within the reexamination period, the Defendant company returned the request for reexamination to the Plaintiff on the ground that the submission period had been exceeded, thereby finalizing the above disciplinary decision, and the disciplinary dismissal made accordingly against the Plaintiff was thus a void disposition made through an unlawful procedure—is justified, and there is no error, as alleged, in misconstruing the period for requesting reexamination.
As to Ground No. 2,
Article 17(2) of the Collective Agreement concluded between the labor union and the Defendant company provides that where a union member subject to disciplinary action has an objection to the company's disciplinary decision, he/she may file a request for reexamination through the union, and the Disciplinary Committee shall immediately conduct the reexamination. The purpose of requiring the Committee to immediately conduct the reexamination upon receipt of such a request is to promptly resolve the unstable status of the employee by expeditiously finalizing the disciplinary procedure.
Therefore, where the Plaintiff, having received the disciplinary dismissal, filed a request for reexamination within the lawful period, but the Defendant company, without reason, returned the request for reexamination to the Plaintiff, finalized the original disciplinary decision, and even completed the disciplinary dismissal and retirement procedures, and then, belatedly, one year and seven months later, convened a Reexamination Disciplinary Committee which rendered a reexamination decision maintaining the original reexamination decision as is—such a reexamination cannot constitute a lawful reexamination serving as a remedial procedure against the original disciplinary decision. The fact that the Plaintiff, hoping to obtain relief through the above reexamination procedure, submitted a written response and stated his opinion therein does not, by itself, cure the reexamination decision into a lawful one. Nor is there any reason to interpret this differently merely because the Collective Agreement or employment rules do not specifically set a period for reexamination.
Ultimately, there is no error in the court below's judgment in misconstruing Article 17(2) of the Collective Agreement as alleged. This argument is without merit.
As to Ground No. 3,
As stated above, where the Plaintiff lawfully filed a request for reexamination against the original disciplinary decision, and, after that request was unjustly returned, took measures through relevant channels to seek relief of rights before filing the instant lawsuit, the fact that the instant lawsuit was filed one year after the request for reexamination was returned cannot be deemed to mean that the lawsuit was unlawfully filed after the Plaintiff had acquiesced to the above disciplinary decision. Furthermore, in light of the Plaintiff's living circumstances and degree of contribution to the Defendant company, etc., while the Plaintiff was lawfully pursuing a request for reexamination against the original disciplinary decision, the mere fact that the Plaintiff received dismissal allowance or retirement pay from the Defendant company after the disciplinary decision cannot, by itself, be deemed to constitute acquiescence to the above disciplinary decision (see this Court's Decisions 78Da1855 rendered on February 13, 1979; 71Da1635 rendered on June 27, 1972, etc.).
Moreover, the filing of the instant lawsuit after receiving such payments cannot be said to violate the principle of good faith.
The judgment below, being to the same effect, is justified, and there is no error, as alleged, in misconstruing the parties' intent regarding acquiescence to the disciplinary decision or in misapprehending the legal principles concerning the principle of good faith. This argument is without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the Defendant. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Presiding Justice Lee Byeong-hu
Justice Lee Myeong-hui
Justice Yun Gwan