[Plaintiff, Appellant]
[Defendant, Appellee] Chairperson of the National Labor Relations Commission
[Intervenor for the Defendant] Korea Invention Promotion Association (Legal Representative: Attorney Min Hong-seok)
[Judgment Below]
Seoul High Court Decision 2002Nu3340 rendered on May 30, 2003
[Order]
The part of the judgment below concerning the automatic dismissal disposition is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed. The costs of the appeal with respect to the dismissed portion shall be borne by the Plaintiff.
[Reasoning]
1. Regarding the Suspension from Position (Job Assignment Removal) Disposition
Suspension from position generally refers to a temporary measure of removing an employee from an assigned post so as to prevent the employee from performing duties, in order to forestall anticipated operational impediments in cases where the employee lacks the ability to perform his or her duties, or where the employee's work performance or work attitude, etc., is poor, where disciplinary proceedings against the employee are ongoing, or where the employee has been indicted in a criminal case, among other circumstances, should the employee continue to hold the position in the future. As such, suspension from position differs in nature from disciplinary action, which is a punitive sanction imposed for the purpose of maintaining organizational order in response to an employee's past misconduct. Accordingly, the legitimacy of a suspension from position disposition against an employee should be judged based on whether grounds for the suspension from position exist with respect to the employee, or whether any violation of procedural rules concerning suspension from position is such as to render the suspension from position disposition void, and the mere fact that the suspension from position disposition is harsh on the employee or is inequitable in light of disciplinary actions taken against other employees for similar misconduct cannot, by itself, be deemed to render the disposition lacking in legitimacy (see Supreme Court Decision 95Nu15926, rendered October 29, 1996).
The court below determined that the "instant suspension from position disposition," whereby the head of the [name omitted] Center suspended the Plaintiff from his position and ordered standby assignment on February 24, 2000, on the ground that the Plaintiff fell under the category of a person whose ability to perform duties was markedly deficient or whose work performance was extremely poor, was lawful. This was based on the following facts: the Plaintiff, as the head of the Planning and Management Team of [name omitted] (which became independent as a corporate entity named "[name omitted]" on January 2, 2002), an affiliated institution of the Intervenor corporation, was responsible for handling practical matters related to the conclusion of the "1996 Computer Equipment Introduction and Installation Contract." Due to gross negligence, in calculating the base amount of the estimated price by item for the computer equipment to be introduced, the Plaintiff erroneously entered the estimated unit price of two sets of the Intersys Communication Services License product (hereinafter "the instant product") among the computer equipment items as KRW 68,666,000 instead of KRW 34,333,000. As a result, when the Intervenor corporation concluded the computer equipment introduction and installation contract with Korea Hewlett-Packard Co., Ltd. (hereinafter "Hewlett-Packard") on December 3, 1996, the unit price of the instant product was calculated at KRW 68,700,000, causing the Intervenor corporation damage in the equivalent amount. This fact came to light as a result of an audit conducted from August 23, 1999 to September 4, 1999.
In light of the above legal principles and the record, the fact-finding and determination by the court below as set forth above are proper, and there is no illegality therein due to mistake of fact stemming from a violation of the rules of evidence, or misapprehension of the legal principles concerning grounds for suspension from position and gross negligence.
2. Regarding the Automatic Dismissal Disposition
A. The court below found that, notwithstanding the fact that the Plaintiff had caused the Intervenor corporation to suffer damage of approximately KRW 70 million due to his own fault, the Plaintiff neither compensated for such damage nor disclosed any concrete compensation plan, and that the Intervenor corporation had filed a damages claim lawsuit against the Plaintiff, which suit was pending. Based on these findings, the court below determined that the Plaintiff, despite admitting to having caused a large amount of damage, was avoiding compensation and shifting the responsibility for recovery onto the victim, and thus concluded that there were no circumstances warranting the conclusion that the grounds for suspension from position—such as the Plaintiff's recovery of his ability to perform duties or improvement in his work performance—had ceased to exist so as to require that a position be assigned to him. On this basis, the court below determined that the instant automatic dismissal disposition, carried out on the ground that the three-month standby assignment period had expired, was not unlawful.
B. The instant automatic dismissal treatment of the Plaintiff was carried out pursuant to Article 17, Subparagraph 4 of the Intervenor corporation's personnel regulations, on the ground that, notwithstanding that three months had elapsed since the Plaintiff received the suspension from position disposition—imposed on the ground that the Plaintiff fell under the grounds set forth in Article 25, Paragraph 1, Subparagraph 1 of the Intervenor corporation's personnel regulations—the grounds for the suspension from position had not been extinguished or resolved. When such automatic dismissal treatment following a suspension from position disposition is observed as an integrated whole, it constitutes, in substance, a dismissal, in that it terminates the employment contract relationship against the will of the employee and in accordance with the unilateral intent of the employer. Accordingly, such disposition must be deemed subject to the restrictions imposed by the Labor Standards Act (근로기준법).
Accordingly, under the Intervenor corporation's personnel regulations, a person who has received a suspension from position disposition acquires, by virtue of the effect of the suspension from position disposition itself, a considerable probability of being subjected to automatic dismissal treatment under certain conditions. On the other hand, since automatic dismissal treatment is a disposition carried out because the state of suspension from position continues for three months without the assignment of a position, even where the suspension from position disposition was legitimately imposed in the first instance, in order for the automatic dismissal treatment itself to constitute a legitimate automatic dismissal disposition that does not amount to an abuse of the right of personnel management or disciplinary authority, the grounds for suspension from position—such as insufficient ability to perform duties or poor work performance—must continue to exist during the three-month period following the suspension from position disposition (see Supreme Court Decision 94Da43351, rendered December 5, 1995, among others).
According to the record, it can be seen that, after the instant suspension from position disposition, the Plaintiff admitted that he had caused damage to the Intervenor corporation due to his own mistake, and made efforts to recover the amount of damage, including consulting with an attorney and making several contacts with persons in charge at HP. However, the Intervenor corporation, without making any official effort toward HP to recover the amount of damage, instead demanded compensation for the damage solely from the Plaintiff, filed a criminal complaint against the Plaintiff on charges including occupational breach of trust, and filed a lawsuit against the Plaintiff seeking damages, thereby rendering it impossible for the Plaintiff to compensate the Intervenor corporation for the damage or to disclose a concrete compensation plan. Moreover, there is no evidence to support the conclusion that grounds for suspension from position—namely, that the Plaintiff's ability to perform duties was insufficient or that his work performance was poor—continued to exist during the standby assignment period following the instant suspension from position disposition. Nevertheless, it appears that the Intervenor corporation, without reasonable grounds, failed to assign a position to the Plaintiff, and then carried out the instant automatic dismissal disposition on the sole ground that the three-month period had expired. This constitutes an abuse of disciplinary authority.
Notwithstanding this, the determination by the court below that the instant automatic dismissal disposition was legitimate contains an illegality stemming from a misapprehension of the legal principles concerning the legitimacy of an automatic dismissal disposition following a suspension from position disposition.
3. Conclusion
Therefore, the part of the judgment below concerning the automatic dismissal disposition is reversed, and that part of the case is remanded to the court below for further hearing and determination; the remainder of the appeal is dismissed; and the costs of the appeal with respect to the dismissed portion shall be borne by the losing party. This Judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Lee Kang-guk (Presiding Justice), Yu Ji-dam (Justice in Charge), Bae Ki-won, Kim Yong-dam