[Plaintiff, Appellant] Jeonbuk Bank Co., Ltd. (Attorneys of the law firm Taepyeongyang, Ka Jae-hwan and 2 others, representing the Plaintiff)
[Defendant, Appellee] Chairman of the National Labor Relations Commission (중앙노동위원회)
[Intervenor for the Defendant] Intervenor for the Defendant
[Judgment Below] Seoul High Court Decision 2002Nu18373, decided August 28, 2003
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
1. Among the requirements for a redundancy dismissal (정리해고), "urgent managerial necessity" is not limited to cases seeking to avoid the bankruptcy of the enterprise, but also includes cases where a reduction in personnel is necessary to preemptively address a crisis that may arise in the future; however, such personnel reduction must be objectively recognized as reasonable (see Supreme Court Decision 2001Da29452, decided July 9, 2002, among others). Furthermore, the requirement that the employer must exhaust efforts to avoid dismissal means that the employer must take all possible measures to minimize the scope of dismissals, such as rationalizing management policies or work methods, prohibiting new hiring, utilizing temporary leave and voluntary early retirement, and reassignment (see Supreme Court Decisions 92Da14779, decided December 22, 1992, and 99Du202, decided April 27, 1999, among others), and the method and degree thereof are not fixed or constant but vary depending on the degree of the employer's managerial crisis, the managerial reasons requiring the redundancy dismissal, the content and scale of the business, and the personnel situation by rank (see the above Decision 2001Da29452, among others).
2. According to the record, on March 15, 2001, the Plaintiff and its labor union, recognizing that the high-wage personnel structure was adversely affecting the Bank's profitability and that personnel restructuring was an unavoidable urgent managerial situation necessary to improve profitability, prepared the "Agreement of the Collective Bargaining Meeting on 2001 Personnel Restructuring" in order to overcome this situation and firmly establish a foundation for independent survival; in doing so, they set the number of personnel to be reduced at approximately 30 non-union members and approximately 45 union members, and simultaneously agreed on the selection criteria for those recommended for honorary retirement and the implementation schedule. Accordingly, on March 20, 2001, the Plaintiff selected a total of 75 persons subject to the measure, including the Intervenor for the Defendant (Grade 2, hereinafter the "Intervenor"), consisting of 30 non-union members of Grade 3 or above and 45 union members of Grade 4 or below, and recommended honorary retirement to them, notifying them that if they did not retire on an honorary basis, they would be placed on standby assignment (대기발령). On March 23, 2001, the Plaintiff's Personnel Committee resolved to approve honorary retirement for 77 persons (29 non-union members and 48 union members) who had applied for honorary retirement, thereby exceeding the overall target. However, when the Intervenor, despite being recommended for honorary retirement, refused to comply, the Plaintiff ordered the Intervenor to be placed on standby assignment on March 26, 2001, and then, after six months had elapsed, processed the Intervenor's retirement on September 26, 2001. Moreover, as of September 26, 2001, the Plaintiff's profitability had improved, with net income for the period from around January 2001 to around September of the same year reaching approximately KRW 4.9 billion (an increase of KRW 23.9 billion compared to the same period of the previous year), and the Plaintiff was expecting to achieve KRW 20 billion by the end of the year, while setting a target of achieving a surplus of KRW 25 billion for 2002; furthermore, the Plaintiff and its labor union had agreed to raise wages by 4.5% for 2002. In addition, after implementing the above honorary retirement and placing the Intervenor on standby assignment, the Plaintiff, on July 10, 2001, carried out a personnel action promoting a total of 41 persons, including 3 to Grade 1, 12 to Grade 2, 18 to Grade 3, and 8 to Grade 4; moreover, immediately before taking the retirement action against the Intervenor, the Plaintiff posted a recruitment notice for new college graduates on September 20, 2001, announced a total of 26 final successful candidates on October 25, 2001, and subsequently formally appointed the said 26 persons. Meanwhile, it can be seen that when the Plaintiff applied the above selection criteria for those recommended for honorary retirement to the 131 employees of Grade 3 or above, the Intervenor was selected as the 18th ranked candidate for recommendation. There is no material in the record to recognize that, in reaching the agreement on the above personnel restructuring, the Plaintiff and its labor union also agreed on matters concerning the promotion personnel action and the new hiring of college graduates, in addition to the aforementioned honorary retirement.
Given these circumstances, as of September 26, 2001, when the Plaintiff took the redundancy dismissal measure at issue against the Intervenor, the number of honorary retirees resulting from the Plaintiff's efforts to avoid dismissal had already exceeded the overall target of the personnel restructuring, and the Plaintiff's managerial condition was also improving. In particular, considering that immediately after the above honorary retirement, the Plaintiff carried out a personnel action promoting 41 employees of Grade 4 or above—who fell within the high-wage personnel structure—and newly hired as many as 26 college graduates, thereby filling 18 positions of Grade 3 or above, resulting in a net reduction of only 12 employees among those of Grade 3 or above, and further considering that the Intervenor was ranked 18th among those recommended for honorary retirement among Grade 3 or above employees, it is difficult to view, from an objective standpoint, that the Plaintiff's additional personnel reduction measure of dismissing the Intervenor through redundancy dismissal was reasonable, nor can it be said that the Plaintiff exhausted efforts to avoid dismissal.
The lower court's determination, to the same effect, that the redundancy dismissal at issue is invalid for failing to meet the requirements therefor is justified, and there is no illegality therein, such as violation of the rules of evidence, misapprehension of legal principles, or incomplete deliberation, as alleged in the first ground of appeal. Furthermore, since the redundancy dismissal at issue failed to meet the requirements therefor for the reasons stated above, even if the criteria applied by the Plaintiff in selecting the Intervenor and others as candidates recommended for honorary retirement were reasonable and fair, this cannot affect the conclusion reached above; therefore, the argument in the second ground of appeal is likewise unacceptable.
3. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiff, and it is so decided as set forth in the Order.
Supreme Court Justices: Lee Yong-woo (Presiding Justice), Cho Mu-je, Lee Kyu-hong, Park Jae-yoon (Justice in Charge)