[Plaintiff, Appellant] Plaintiff Co., Ltd. (Attorney Lee Seung-min, Counsel for the Plaintiff)
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Defendant's Intervenors] Defendant's Intervenor 1 and 1 other (Attorneys of Simin Jonghap Law Firm, Attorney Jeon Yeong-sik, Counsel for the Intervenors)
[Judgment Below] Seoul High Court Decision 2001Nu4988 delivered on November 8, 2001
[Order]
The part of the judgment below concerning Defendant's Intervenor 1 is reversed, and this part of the case is remanded to the Seoul High Court. The remainder of the Plaintiff's appeal is dismissed. The costs of the dismissed portion of the appeal shall be borne by the Plaintiff.
[Reasoning]
1. The court below found, based on the evidence it adopted, the following facts: the Defendant's Intervenors (hereinafter "Intervenors"), who were employees of the Plaintiff company, received notice of disciplinary dismissal from the Plaintiff on September 4, 1999 (grounds for discipline: disruption of management order and obstruction of business through creating an atmosphere of fear and anxiety due to an incident of violence in the workplace that occurred at approximately 13:00 on July 30, 1999, in the Plaintiff company's parking lot); the Intervenors filed an application for relief with the Gyeonggi Regional Labor Relations Commission on September 8, 1999; the said Commission, on November 16 of the same year, found that each of the said dismissals constituted an unfair dismissal in violation of the disciplinary procedures under the collective bargaining agreement, and ordered the Plaintiff to reinstate the Intervenors to their original positions and pay wages; the Plaintiff, in response, filed an application for reexamination on December 22, 1999; the National Labor Relations Commission, on March 27, 2000, rendered the reexamination decision at issue in this case, dismissing the Plaintiff's application for reexamination on the ground that although there was no defect in the disciplinary procedure, the disciplinary measure was excessive; meanwhile, Nonparty 1, an employee of the Plaintiff company, upon seeing Intervenor 2 — with whom he had been on bad terms due to the union chairman election — arriving at work at approximately 06:20 on July 29, 1999, in the aforementioned parking lot, grabbed him by the collar and assaulted him with an umbrella; when Nonparty 2, a fellow employee who had been asked for help by the said Intervenor, entered a taxi to report the matter to the police by mobile phone, Nonparty 1 broke the taxi's windshield with the umbrella and pulled Nonparty 2 out by the collar; and Nonparty 3, a fellow employee who tried to stop the fight between Nonparty 1 and Nonparty 2, and Nonparty 2 assaulted each other with their fists (regarding this incident, Nonparty 1, Nonparty 2, and Nonparty 3 received dispositions of deferred prosecution, while Intervenor 2 initially received a disposition of deferred prosecution but, after filing a complaint, received a disposition of no suspicion on May 9, 2000); the court below also found that on the following day, July 30, at approximately 13:20, in the same parking lot, Nonparty 1 assaulted Intervenor 1 in the face with his fist, and Intervenor 2, who was nearby, grabbed Nonparty 1 by the neck to stop him (regarding this, the Intervenors received dispositions of no suspicion).
Thereafter, the court below rejected the Plaintiff's argument that each of the dismissals in this case was justified, namely, that the two instances of group fighting between the Intervenors and other employees in the workplace were caused not only by the Intervenors' extortion and threats to hold the opposing election management committee members accountable for dereliction of duty after the union chairman election, but also that: ① Intervenor 1 formed a private organization called "Good Friends" and conspired to instigate workplace violence; ② on August 25, 1999, Intervenor 1 submitted a contribution to the readers' opinion column of a local newspaper stating that the Plaintiff company had refused to discipline Nonparty 1 and had also refused to process industrial accident compensation for Intervenor 1, and had this published while explicitly naming the company and its representative director, thereby defaming the Plaintiff company and its representative director; ③ the Intervenors filed complaints with labor authorities over trivial matters, causing the Plaintiff company to be fined 1,000,000 won and damaging the Plaintiff company's image; ④ the Intervenors had poor work attitudes, such as avoiding Sunday shifts; and that, immediately upon assuming office in the union leadership, the Intervenors filed a complaint against the Plaintiff company with the Gyeongin Regional Tax Office, causing the Plaintiff company to undergo a tax investigation and be subjected to additional tax assessment, and that these circumstances should also be considered as grounds for each of the dismissals in this case — the court below rejected this argument on the ground that there was no evidence to establish that the Intervenors had assaulted Nonparty 1 and others; rather, as noted above, only the fact that the Intervenors were assaulted by Nonparty 1 and others was established; and that circumstances ① through ④ above were not originally cited by the Plaintiff as grounds for each of the dismissals in this case, and therefore could not be used as a basis for determining their legitimacy; accordingly, the court below found that each of the dismissals in this case was unlawful for failing to satisfy the requirements of a disciplinary ground, and ultimately determined that the reexamination decision in this case was lawful.
2. Whether a particular act of misconduct by an employee constitutes grounds for discipline must be determined by whether the disciplinary committee or similar body actually relied on such act as a ground for discipline, based on the specific materials before it; the grounds for discipline are not necessarily limited to the grounds for discipline stated in the rules of employment or disciplinary regulations as recorded in the disciplinary resolution or disciplinary disposition document (see Supreme Court Decision 95Nu15742 delivered on September 20, 1996; Supreme Court Decision 95Nu16684 delivered on March 14, 1997, among others). Furthermore, even acts of misconduct that were not relied upon as grounds for discipline in the disciplinary action may nonetheless be taken into account, as materials relevant to the selection of the type of disciplinary measure, in assessing the severity of the disciplinary action, such as the disciplined person's ordinary conduct, work performance, and acts of misconduct committed before or after the disciplinary grounds in question (see Supreme Court Decision 96Nu4244 delivered on February 14, 1997; Supreme Court Decision 97Nu9161 delivered on December 9, 1997; Supreme Court Decision 98Da2365 delivered on May 22, 1998, among others).
However, according to the evidence adopted by the court below and the record, the following facts may be found: ⑴ when the chairman of the Plaintiff company's labor union, Nonparty 4, resigned before completing his term, which was to run until December 31, 1999, an election was held on July 9 of that year, resulting in the election of Intervenor 1 as chairman; a dispute arose among union members as to whether the new chairman's term was three years, as claimed by Intervenor 1, or only until December 31, 1999, the remainder of Nonparty 4's term; in particular, as Nonparty 1 and others, who had served as election management committee members at the time, took a position opposing Intervenor 1, Intervenor 1, despite having previously acknowledged upon his election as chairman that his own term would run only until December 31, 1999, developed strong animosity toward Nonparty 1 and other union members who had opposed his initial claim, raising issues against them and fostering conflict and tension with the opposing union members; and Intervenor 2, who as the union's general affairs manager supported Intervenor 1, likewise joined in this conduct (the Intervenors had formed and operated an in-house private organization called "Good Friends," led by Intervenor 1); ⑵ feeling anxiety and a sense of crisis as a result, Nonparty 1 instigated the violent incidents as found by the court below; given that, when such violent incidents occur within a labor union, it is self-evident that, from the standpoint of the Plaintiff company, which operates a taxi business requiring the psychological stability of its employees primarily for accident prevention purposes, the management order would inevitably be disrupted; accordingly, the Intervenors, as chairman and general affairs manager of the labor union respectively, were duty-bound to prevent such internal union violence in advance, and even where such violence occurred, to resolve the matter through their own capacity; nevertheless, the Intervenors actively fostered conflict and tension within the union, leading to the occurrence of the above violent incidents; moreover, Intervenor 1, in particular, submitted a contribution to the readers' opinion column of a local newspaper on August 25, 1999, describing the aforementioned violent incident and the employer's subsequent response using expressions such as "an incident beyond common sense that could not have occurred without a hidden agenda," thereby expressing dissatisfaction with the employer's failure to discipline Nonparty 1 and its failure to process the industrial accident compensation insurance payment for his own injuries, while making it appear as though the Plaintiff company was behind the said violent incident, explicitly naming the Plaintiff company and its representative director in the contribution; meanwhile, even though the Plaintiff company had referred Nonparty 1, who caused the said violent incident, and the Intervenors who were involved therein, to the disciplinary committee, requested the labor union to select employee-side disciplinary committee members, and afforded the Intervenors an opportunity to explain the above conduct, the Intervenors, on August 31, 1999, took the improper measure of selecting and notifying four persons, including the Intervenors themselves who were parties involved in the incident, as the employee-side disciplinary committee members; when the employer pointed out the impropriety of this and demanded that the selection be replaced, the Intervenors refused and did not attend the disciplinary committee meeting held on September 1 of that year; thereafter, they attended the disciplinary committee meeting reconvened at 11:00 on September 3, but shouted "Do as you please" and walked out; ⑶ furthermore, Intervenor 1 submitted a petition to the Commissioner of the Gyeongin Regional Tax Office on August 13, 1999, alleging that the Plaintiff company had omitted sales revenue by taking advantage of periods of non-assignment after hiring employees; however, Intervenor 1 made no effort whatsoever to attempt to resolve, through prior discussion with the Plaintiff company as employer, the issue of the relevant taxi drivers not receiving bonuses, national pension, medical insurance, and other benefits during the non-assignment period, but instead unilaterally proceeded straight to filing the said petition; moreover, around May 2000, after the dismissals in this case, Intervenor 1 distributed, without authorization, outside the company, leaflets criticizing the successor union chairman, Nonparty 5, using terms such as "human garbage" and "Nonparty 5, who sold out the union to the company president, dirtier than a prostitute," which ultimately led to a situation in which a majority of union members collectively expressed their opposition to the Intervenors' reinstatement; ⑷ and, as found by the court below, the Defendant likewise rendered the reexamination decision in this case on the premise that the Intervenors' acts of misconduct constituted grounds for discipline, but only on the ground that the severity of the disciplinary measure in each of the dismissals in this case was excessive.
Given these circumstances, even though the disciplinary resolution or disciplinary disposition document for each of the dismissals in this case states the grounds for discipline merely as "disruption of management order and obstruction of business through creating an atmosphere of fear and anxiety due to an incident of violence in the workplace that occurred at approximately 13:00 on July 30, 1999, in the Plaintiff company's parking lot," it is reasonable to view that the substantive acts of misconduct constituting the grounds for discipline include the violent incidents occurring over the two days of July 29 and July 30, 1999, in which the Intervenors were involved, as well as Intervenor 1's act of submitting the contribution to the local newspaper. Furthermore, even though the Intervenors were merely victims insofar as the handling of the criminal case regarding the said violent incidents is concerned, it must be recognized that an important cause of the occurrence of such violent incidents was the fact that the Intervenors, as chairman and general affairs manager of the labor union, actively fostered conflict and tension among union members; this constitutes a ground for discipline in that it indirectly caused internal union violence, thereby disrupting the Plaintiff company's management order; moreover, Intervenor 1's act of submitting the contribution to the local newspaper also constitutes a ground for discipline, in that, rather than resolving the said violent incident through normal means, Intervenor 1 instead groundlessly disparaged the Plaintiff company and its representative director, who had themselves suffered harm as a result of the incident; and the remainder of Intervenor 1's acts of misconduct may be taken into account as materials relevant to assessing the severity of the disciplinary measure.
3. Furthermore, a disciplinary dismissal may be recognized as justified only where there exist grounds attributable to the employee of such a degree that, according to common social norms, the employment relationship can no longer be continued; whether the employment relationship with the employee concerned can no longer be continued according to common social norms must be determined by comprehensively examining various circumstances, including the purpose and nature of the employer's business, the conditions of the workplace, the employee's position and the content of the duties in charge, the motive and circumstances of the misconduct, the risk to corporate order posed thereby, including the danger of disruption to the employer's hierarchical order, and the employee's past work attitude (see Supreme Court Decision 97Nu18189 delivered on November 10, 1998, among others). In light of the above factual findings, there is ample room to conclude that, in the case of Intervenor 1, in addition to the grounds for discipline set forth above, through various acts of misconduct committed before and after the dismissal in this case, Intervenor 1, disregarding the legitimacy of proper methods and procedures as well as workplace order, and using or exploiting union activities as a pretext, repeatedly damaged, through unnecessary personal misconduct born of emotional grievance, the relationship of trust with the Plaintiff company to the point where, according to common social norms, there exists a serious ground rendering it impossible to continue the employment relationship.
Nevertheless, the court below, based solely on the reasons stated above, determined that the dismissal of Intervenor 1 in this case was altogether unlawful for failing to satisfy the requirements of a disciplinary ground, and accordingly held that the portion of the reexamination decision in this case concerning Intervenor 1 was lawful; in so doing, the court below committed an error of law affecting the judgment by misapprehending the legal principles concerning the method of determining disciplinary grounds and the assessment of the severity of disciplinary measures; the argument in the grounds of appeal pointing this out is therefore well-founded.
However, in the case of Intervenor 2, since the degree of his misconduct or involvement was not serious, it cannot be said that, based on the above grounds alone, the employment relationship could no longer be continued according to common social norms to that extent; accordingly, the court below's determination that the reexamination decision in this case concerning Intervenor 2 was lawful is justified in its conclusion, and there is no error of law affecting the judgment as alleged in the grounds of appeal.
4. Therefore, the part of the judgment below concerning Intervenor 1 is reversed, and this part of the case is remanded to the court below; the remainder of the Plaintiff's appeal is dismissed, and the costs of the dismissed portion of the appeal shall be borne by the losing party; it is so decided as set forth in the Order.
Presiding Justice Lee Yong-woo, Justice Seo Seong, Justice Bae Gi-won, Justice Park Jae-yoon (Presiding/Reporting Justice)