[Plaintiff, Appellant] Shinhan Remicon Co., Ltd.
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Judgment Below] Seoul High Court Decision 94Gu33486, rendered September 21, 1995
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below found, based on the evidence it adopted, as follows: On November 4, 1994, the non-party entered into an agreement with the Plaintiff concerning working conditions, whereby the non-party agreed to concentrate solely on the business planning and research and development work for the production of new products such as tower cranes and lifts to be manufactured at a factory the Plaintiff was in the process of establishing within the Dongnam Regional Industrial Complex located in Changwon City; that, due to the nature of the duties in charge and the employment relationship, until March 1994 going out or on business trips was permitted more freely for the non-party than for other employees, and the Plaintiff did not particularly control this; that, as the development project for the said Dongnam Regional Industrial Complex was delayed, the Plaintiff, in early April 1994, instructed the non-party to refrain from field work except for tasks specifically assigned and to perform only in-office work; and that, even after this instruction, from April 5 of the same year the non-party did not pay particular attention to the attendance card kept at the workplace and failed to properly record his time of arrival and departure and the time of his return after going out, such that the attendance card erroneously recorded 59 days of unauthorized outings and 7 days of tardiness by the non-party during April, May, and June of that year. The court below also held, in light of the fact that the grounds for disciplinary action cited in the disciplinary resolution and the disciplinary disposition notice were Article 60(4) of the Rules of Employment and Article 4(3), Items 13 and 14 of the Disciplinary Regulations, among others, that the Plaintiff had not made the disciplinary charge alleged by the Plaintiff—namely, that the non-party had pursued his own personal interests contrary to the interests of the company—a ground for disciplinary action, and accordingly rejected evidence supporting the Plaintiff's assertion, including the entry in Exhibit A No. 7-2.
2. However, even granting that, pursuant to the agreement entered into with the Plaintiff on November 4, 1993 [as noted above, dated November 4, 1994 in the earlier paragraph], the non-party was to concentrate solely on business planning and research and development work for the production of products such as tower cranes and lifts to be manufactured at the factory the Plaintiff was in the process of establishing, that until March 1994 going out or on business trips was, due to the nature of the duties in charge and the employment relationship, permitted more freely for the non-party than for other employees, and that the Plaintiff did not particularly control this, nevertheless, once the non-party received the instruction to perform in-office work as found by the court below, the non-party was thereafter required to perform only in-office duties related to his assigned work, unless there existed special circumstances such as that the non-party was unable to obtain approval for field work and was therefore compelled to go out without the Plaintiff's approval. Such an instruction to perform in-office work cannot be said to constitute a unilateral change of the content of the duties in charge under the original agreement. Moreover, the non-party himself testified before the court below that after receiving the instruction to perform in-office work, he stamped his seal on the attendance card (see record, p. 188), and therefore it cannot readily be concluded that, even after receiving the instruction to perform in-office work, the non-party failed to pay particular attention to the attendance card and thus failed to properly record his time of arrival and departure and the like.
Furthermore, whether a particular act of misconduct constitutes a ground for disciplinary action must be determined by whether the disciplinary committee, based on concrete materials, actually treated it as a ground for disciplinary action; the grounds for disciplinary action are not necessarily limited to the grounds cited under the Rules of Employment or the Disciplinary Regulations as stated in the disciplinary resolution or disciplinary disposition notice. Moreover, even according to the non-party's own statements, it is acknowledged that, at the time he was notified of the convening of the disciplinary committee concerning himself, the Plaintiff delivered to him a notice entitled "Damage to Company Image, etc." (see Exhibit A No. 10, record pp. 97, 102), and that, at the disciplinary committee, he stated that he could not answer the questions of the disciplinary committee members, who were composed of employees of the Plaintiff company, because he himself was not an employee of the Plaintiff company but belonged to the Manufacturing Business Division of the Plaintiff company's Changwon factory (see Exhibit A No. 10, record p. 102). Exhibit A No. 7-2 also records that, after making remarks to the same effect at the disciplinary committee, the non-party failed to answer sincerely the questions of the committee members and thereafter voluntarily left the meeting room during the deliberations of the disciplinary committee. Given this, absent any other special evidence, the relevant portion of Exhibit A No. 7-2, which records that, after the non-party's departure, misconduct related to acts by which the non-party pursued personal interests was discussed as a ground for disciplinary action, cannot be summarily rejected merely on the basis of the non-party's own assertion that he left the meeting room during the deliberations. Moreover, as is acknowledged from the record, the non-party, who had entered into the above-mentioned agreement with the Plaintiff, engaged in preparatory work necessary to conduct a vehicle-leasing (jiip) business for ready-mixed concrete transport by entering into a leasing contract, without the Plaintiff's permission, with another company that was in a competitive relationship with the Plaintiff, under which he agreed to perform ready-mixed concrete transport work for that other company. Such conduct violates Articles 19 and 21 of the Rules of Employment, and it may reasonably be regarded as conduct that violated the company's rules of service and thereby disturbed the company's order of command. Accordingly, it cannot be said that the portion of the alleged misconduct asserted by the Plaintiff—namely, that the non-party pursued personal interests contrary to the interests of the company—fails to fall within the ground for disciplinary dismissal set forth in Article 60(4) of the Rules of Employment and Article 4(3), Item 14 of the Disciplinary Regulations, cited as the basis for discipline in the disciplinary resolution and disciplinary disposition notice, namely, "when an employee disturbs the company's order of command by failing to comply with work-related instructions."
Nevertheless, the court below, regarding the Plaintiff's instruction to perform in-office work as a unilateral change of the content of the original agreement contrary to the purpose for which the non-party was employed, without examining which portions of the entries on the attendance card regarding the non-party's unauthorized outings or tardiness were improperly recorded, simply held that the non-party failed to pay particular attention to the attendance card even after receiving the instruction to perform in-office work and thus failed to properly record his time of arrival and departure, and held that there was no other evidence showing that the non-party violated the Plaintiff's instructions and orders, thereby rejecting this portion of the disciplinary charge alleged by the Plaintiff; and, further, held that the portion of the alleged misconduct concerning the non-party's pursuit of personal interests contrary to the company's interests was not made a ground for disciplinary action by the Plaintiff. In so holding, the court below ultimately violated the rules of evidence and, further, failed to exhaust its examination, thereby erring in its factual findings concerning the grounds for disciplinary dismissal. The grounds of appeal pointing this out are all well-founded.
3. While thus denying part of the disciplinary charges against the non-party or finding that part of the alleged misconduct asserted by the Plaintiff was not made a ground for disciplinary action by the Plaintiff, the court below nevertheless held, hypothetically, that even if the non-party had gone out for personal errands in violation of work-related orders or instructions, this was not of a degree warranting the non-party's dismissal; and that, even assuming the portion concerning the non-party's pursuit of personal interests contrary to the company's interests could be regarded as a ground for disciplinary action, such conduct by the non-party, in light of the circumstances set forth in the court below's reasoning, could not be found to constitute a breach of trust of such a degree as to bring the employment relationship to ruin. On these grounds, the court below determined that the non-party's dismissal was unjust dismissal.
However, if, as the Plaintiff asserts, the non-party, within the relatively short period from early April 1994 to around the end of June of that year, went out without authorization on 59 occasions to attend to personal errands from time to time, and was additionally tardy on 7 occasions, then, considering that the Plaintiff company's Rules of Employment provide, under Article 27, that employees must personally stamp their seal on the attendance register upon arriving at work (Paragraph 2), that when an employee is tardy, leaves early, or goes out, the employee must record the reason therefor on the prescribed form and submit it to obtain the permission of the department head (Paragraph 3), and that, regardless of the duration, three instances of tardiness, early leave, or personal outings shall be treated as equivalent to one day of absence in evaluating work performance (Paragraph 7); that Article 29 likewise provides that an employee wishing to go out during working hours must obtain the permission of the department head; and that Article 31 similarly provides that when an employee intends to be tardy or to leave early, the employee must, in advance, record the expected time and reason therefor on the prescribed form, apply through the department head, and obtain permission, and that, if unable to follow this procedure due to unavoidable circumstances, the employee must promptly complete the procedure afterward—all of which indicate that the Plaintiff maintained a relatively strict attitude toward employees' tardiness, unauthorized outings, and the like; and considering further that the non-party continued to engage in such misconduct even after receiving the Plaintiff's instruction to perform in-office work, the number and degree of the non-party's unauthorized outings and instances of tardiness, and the fact that the non-party has shown no sign whatsoever of remorse in this regard—taking all these circumstances comprehensively into account, absent other special circumstances, there is ample room to find that such misconduct alone constitutes a serious cause rendering it impossible, under generally accepted social norms, to continue the employment relationship with the non-party.
Moreover, where an employee subject to disciplinary action has committed several instances of alleged misconduct, whether the disciplinary dismissal on that basis is proper should not be judged by looking at each ground individually or by considering only some of the grounds, but rather by determining, in light of all the grounds taken together, whether the employee bears responsibility to such a degree that, under generally accepted social norms, the employment contract cannot be continued (see Supreme Court Decision 91Da6740, rendered November 22, 1991; Supreme Court Decision 95Nu2487, rendered May 31, 1996). Accordingly, in determining whether the dismissal of the non-party was justified, the disciplinary charges examined above must be considered as a whole. The grounds of appeal pointing this out are also well-founded.
4. Therefore, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered by the unanimous opinion of the participating Justices as set forth in the Order.
Supreme Court Justice Kim Hyung-seon (Presiding Justice), Park Man-ho, Park Jun-seo (Justice in Charge)