[Plaintiff, Appellee] Plaintiff Co., Ltd. {Attorney-in-fact: Law Firm (LLC) Taepyeong, Attorneys in charge Song Jin-hun and 4 others}
[Defendant] Chairperson of the National Labor Relations Commission
[Defendant's Intervenor, Appellant] Intervenor 1 and 2 others (Attorney-in-fact: Attorney Kwon Du-seop and 4 others)
[Judgment Below] Seoul High Court Judgment, September 5, 2007, Case No. 2007Nu2335
[Order]
All appeals are dismissed. The costs of appeal shall be borne by the Defendant's Intervenors.
[Reasoning] The grounds for appeal are examined.
A reassignment or transfer disposition against a worker may become a disposition disadvantageous to the worker in that it brings about a change in the type, content, or place of work that the worker is to provide; however, since it falls, in principle, within the authority of the employer, who holds personnel authority, considerable discretion must be recognized within the scope necessary for business operations, and it cannot be deemed invalid unless there are special circumstances such as that it violates Article 30(1) of the former Labor Standards Act (근로기준법, before the full amendment by Act No. 8372 of April 11, 2007), which prohibits an employer from dismissing, suspending, discharging, reducing the wages of, or otherwise punishing a worker without justifiable cause, or that it constitutes an abuse of rights. Whether a reassignment disposition, etc. falls within the scope of a legitimate exercise of personnel authority must be determined by comprehensively considering the business necessity of the reassignment disposition, etc., in comparison and balance with the disadvantage in the worker's living conditions resulting from the reassignment, and whether procedures required under the principle of good faith, such as consultation with the labor union to which the worker belongs (or with the worker himself/herself if there is no labor union), were followed in the course of making the reassignment disposition (see Supreme Court Decision 91Da12752, delivered on July 12, 1991; Supreme Court Decision 99Du2963, delivered on April 11, 2000, etc.).
The court below, upon comprehensively considering the evidence it adopted, found the facts as stated in its judgment, and then determined as follows: the Plaintiff Bank, in agreement with the labor union, in order to strengthen organizational competitiveness and improve the seniority-based, high-age, high-cost manpower structure, decided to conduct a comprehensive performance evaluation based on criteria such as work performance over the recent three years, years of service, and omission from promotion, in order to select candidates for honorary retirement and reassignment to non-front-line positions (후선발령); the Intervenors were evaluated as falling within the bottom 4% in the performance evaluation, had been omitted from promotion for 12 to 13 years since their promotion to Level 4, and had also failed the Level 3 promotion examination immediately preceding this by a considerable margin; therefore, there was a business necessity to carry out each of the personnel orders in this case against the Intervenors in accordance with the Personnel Management Guidelines for Employees Reassigned to Non-Front-Line Positions; although each of the personnel orders in this case caused disadvantages such as a reduction in the Intervenors' wages, it is difficult to view such disadvantages as exceeding the degree that should ordinarily be borne so as to impose an excessive disadvantage on the Intervenors' living conditions; and considering that the Plaintiff Bank notified the Intervenors several times of the fact that they had been selected as candidates for honorary retirement and reassignment to non-front-line positions, the court below determined that the Plaintiff Bank had followed the procedures required under the principle of good faith to the extent possible prior to each of the personnel orders in this case.
Examining the record in light of the legal principles set forth above, the fact-finding and determination of the court below are justifiable, and there is no illegality therein, such as a violation of the rules of evidence.
Furthermore, in determining whether the selection of the subjects was based on reasonable and fair criteria as one of the standards for determining the legitimacy of each of the personnel orders in this case, the court below determined as follows: although the Plaintiff Bank, in conducting the performance evaluation for selecting the subjects of reassignment to non-front-line positions in this case, used years of service, omission from promotion, number of dependents, etc. as evaluation criteria, unlike the Plaintiff Bank's Personnel Guidelines, it cannot be deemed unlawful to use different evaluation criteria since this evaluation differs from the performance evaluation under the Personnel Guidelines in terms of timing of implementation, objectives, and subjects; even if there is a tendency for the deduction for omission of promotion to a higher rank compared to peers who joined (or were promoted) at the same time to be proportional to the deduction for omission of promotion within the current rank compared to peers who joined at the same time under the evaluation criteria in this case, and even if the former, being deducted on a yearly basis, is less precise than a deduction made on a six-month basis, which is the unit in which promotion ordinarily occurs, this circumstance alone is insufficient to deem the evaluation criteria applied to all employees of the same rank unreasonable; and even if the deduction for omission of promotion within the current rank compared to peers who joined at the same time, for the non-party and four others, is calculated as 6 points as asserted by the Intervenors, the total scores of these persons are all higher than those of the Intervenors; comprehensively considering these circumstances, the evaluation criteria in this case cannot be deemed unreasonable or unfair.
In light of the circumstances found by the court below as above and the following circumstances recognized from the record, namely: the Plaintiff Bank agreed with the labor union to use years of service by rank as a criterion for selecting subjects of reassignment to non-front-line positions; considering that the purpose of reassignment to non-front-line positions is to improve the seniority-based, high-age, high-cost manpower structure and to strengthen organizational competitiveness, the above criterion of selecting, among long-term promotion-omitted employees, those employees who lack job performance ability as subjects of reassignment to non-front-line positions cannot be deemed unreasonable or unfair merely because it is likely to be disadvantageous to employees with greater age or length of service; it appears that years of service by rank was included in the selection criteria based on the judgment that, since the difference in scores among employees in the performance evaluation is small and may be affected by the subjective judgment of the evaluator, it would be difficult to ensure the effectiveness and objectivity of the evaluation if the performance evaluation score alone were used as the selection criterion; comprehensively considering these circumstances, the criteria for selecting the subjects of reassignment to non-front-line positions in this case cannot be found to lack reasonableness and fairness, and therefore, the above determination of the court below is justifiable.
Accordingly, the determination of the court below that each of the personnel orders in this case is lawful as having been exercised within the scope of legitimate personnel authority is justifiable, and there is no illegality therein, such as a misapprehension of the legal principles concerning the restriction on reassignment under the Labor Standards Act (근로기준법) or a violation of the rules of evidence, as alleged in the grounds for appeal.
Therefore, all appeals are dismissed, and the costs of appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the decision.
Justices: Cha Han-seong (Presiding Justice), Kim Young-ran, Lee Hong-hoon (Justice in charge), Kim Neung-hwan