[Plaintiff, Appellee]
[Defendant, Appellant] Hyundai Apartment Residents' Representative Council, Attorney for the Defendant: Kim Sang-hun
[Judgment Below]
Seoul High Court Judgment rendered on July 24, 1986, Case No. 85Na3594
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to Ground No. 1,
According to the reasoning of the judgment below, the court below, upon comprehensive consideration of the evidence indicated therein, found the following facts: the Defendant prepared an organizational reform plan for the apartment management office under its control, the content of which included abolishing the five-section-chief system and newly establishing a two-department-head system, and reducing and adjusting the number of authorized staff positions from 204 to 189; that as the section-chief system was abolished, and on the ground that, pursuant to Article 25 of the collective bargaining agreement, personnel may be reduced in part or in whole where there is closure of the management office or unavoidable business reasons, the Defendant gave notice of dismissal on April 17, 1984 to Plaintiff 1, who was working as the repair section chief, and to Plaintiff 2, who was the electrical section chief, of the said management office, and thereafter dismissed each of them on May 17 of the same year; that at the time the Defendant reduced and adjusted the authorized staff of the management office, the actual number of employees was 192, which was three more than the adjusted authorized number of 189, but at the time the Plaintiffs were dismissed, the actual number of employees was 187, which was in fact two fewer than the authorized number, showing a gradually decreasing trend; that the Defendant, prior to dismissing the Plaintiffs, did not take measures to avoid dismissal, such as ascertaining whether the Plaintiffs would be willing to work at a lower rank; that, moreover, although Article 16 of the collective bargaining agreement provides that, in the case of personnel reduction, persons with shorter length of service should be selected first, this standard was not considered at all; and that, since the Grade 1 heat management engineer and Grade 1 environmental management engineer qualifications held by Plaintiff 1 and the Grade 2 electrical engineer qualification held by Plaintiff 2 constituted technical personnel qualifications which the management office was required to maintain under the Multi-Family Housing Management Decree (공동주택관리령), the Defendant, after dismissing the Plaintiffs, newly hired two persons holding the same qualifications at similar salary levels. Based on these findings, the court below determined that the Defendant's dismissal of the Plaintiffs was carried out without justifiable cause, merely under the pretext of personnel reduction pursuant to the relevant provisions of the collective bargaining agreement, and was therefore null and void as being in violation of Article 27 of the Labor Standards Act (근로기준법).
Examining the judgment below in light of the record, the above factual findings and determination by the court below are justified and acceptable, and there is no illegality therein, as argued in the grounds of appeal, arising from misapprehension of the rules of evidence resulting in mistake of fact, or from misapprehension of the legal principles concerning the justifiability of dismissal.
2. As to Grounds No. 2 and 3,
Upon examination of the record, it is apparent that the Plaintiffs, while hoping to continue working at the Defendant's management office, are contesting the dismissal in this case, and moreover, immediately after the dismissal, filed petitions with the Defendant, the Ministry of Labor, and other agencies, alleging the wrongfulness of the dismissal. This being so, even if the Plaintiffs received retirement allowances at the urging of the Defendant, it cannot be considered that they thereby acknowledged the validity of the dismissal (see this Court's Judgment rendered on February 13, 1979, Case No. 78Da1855), and the mere fact that the Plaintiffs were temporarily employed at another company for their livelihood cannot be deemed to mean that they terminated the employment contract with the Defendant or voluntarily abandoned it themselves.
The arguments are all without merit.
3. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Lee Jun-seung (Presiding Justice), Kim Hyeong-gi, Park Woo-dong