[Plaintiff, Appellee]
[Defendant, Appellant] Korean Air Terminal Service Co., Ltd. (Hankuk Gonghang Co., Ltd.) (Litigation representative: Hanmi Joint Law Office, Attorneys Yoo Kyung-hee and 8 others)
[Judgment Below] Seoul High Court Decision 93Na50828 rendered on February 7, 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. The gist of the reasoning of the judgment below is as follows.
A. The facts found by the court below are as follows.
The Defendant is a domestic air transport business entity that is a subsidiary of Korean Air Co., Ltd., and exclusively handles ground handling operations—such as guiding the arrival and departure of Korean Air aircraft and foreign aircraft operating flights in Korea at international airports such as Gimpo, Gimhae, and Jeju and at most regional airports, as well as loading and unloading of baggage and the starting of aircraft engines, etc. The Plaintiff was hired by the Defendant company as a ground handling employee on June 1, 1990.
On August 12, 1992, the Defendant issued a recommended resignation (權告辭職) disposition against the Plaintiff on the grounds of the following conduct as disciplinary causes: (1) around 13:20 on May 26, 1992, the Plaintiff requested early leave from Deputy Department Head ○○○ of the Defendant company but was not granted permission, yet nonetheless left his post without authorization from 14:47 that same day; (2) around 09:00 on July 25, 1992, the Plaintiff requested monthly leave for that day from ○○○, the work team leader (組業長) of Team 15 of the 2nd International Ground Handling Section of the International Ground Handling Department to which the Plaintiff belonged, but was not granted permission, yet nonetheless left his post without authorization from 10:20 that same day; (3) on July 5, 1992, the Plaintiff operated a cargo loading/unloading device (CGO LOADER) without a license, causing an accident in which a container loaded on the device fell to the ground; and (4) around 08:00 on July 10, 1992 (which appears to be a clerical error for July 16, 1992), the Plaintiff wrote, at the top of each of 30 copies of the Hankyoreh Shinmun newspaper of that date, which contained an article on the wage negotiations between labor and management within the Defendant company, the phrase "Let's make encouraging phone calls to the Hankyoreh Shinmun reporter," and then distributed these to the 1st and 2nd International Ground Handling Sections, the Cabin Support Section, and the Aircraft Support Section. The Plaintiff requested a re-examination of this disposition, but the Re-examination Personnel Committee, after giving the Plaintiff an opportunity to present his explanation, dismissed the request on August 20, 1992 (which appears to be a clerical error for October 20, 1992).
After the above recommended resignation disposition, the Defendant, on August 25, 1992, issued an order removing the Plaintiff from his position and assigning him to head office standby status (本社附 command), and since the Plaintiff did not submit a letter of resignation even after his request for re-examination was dismissed, the Defendant issued a dismissal (罷免) disposition against the Plaintiff on November 25, 1992.
The Defendant company's Rules of Employment provide for the following types of disciplinary action: dismissal (罷免), discharge (解任), recommended resignation (勸告辭職), demotion, suspension, salary reduction, reprimand, and warning (Article 53), and additionally provide that where it is determined that normal performance of duties is impossible, an order assigning the relevant employee to head office standby status may be issued (Article 54). As to grounds for disciplinary action, Article 52 of the Rules of Employment limits these to: a person who has committed an unlawful act giving rise to criminal proceedings (item 1); a person who has violated a written pledge or the company's various regulations or engaged in conduct contrary to his duties (item 2); a person who, intentionally or negligently, has caused an operational hindrance and fostered a cause impeding the normal performance of the company's business, thereby causing loss to the company (item 3); a person who, through inflammatory remarks or actions inciting employees, has caused disputes in the workplace and fostered a cause impeding the performance of the company's business, thereby causing loss to the company (item 4); and a person who has violated the provisions of Articles 8 and 11 of these Rules (item 5). Among the grounds for discharge, the Rules list failure to be reassigned within three months from the date of receiving a head office standby order (Article 46, Paragraph 2, Item 5), and among the grounds for dismissal, the Rules list failure to comply with a recommended resignation decided upon deliberation by the Personnel Committee (Article 46, Paragraph 3, Item 3). The Defendant company's Personnel Committee Regulations subdivide the grounds for discipline into 62 items and establish standards for the degree of discipline for each item.
B. The judgment of the court below is as follows.
The recommended resignation as a disciplinary measure by the Defendant company, the head office standby order as a provisional measure following therefrom, and the dismissal disposition that naturally follows are mutually inseparable, and rather than viewing each as an independent disciplinary disposition, it is appropriate to view them as a single disciplinary disposition of recommended resignation, and to judge them as a whole accordingly.
As to disciplinary ground (1) above, although ○○○ initially permitted the Plaintiff's early leave, he then, upon realizing that the Plaintiff intended, after taking early leave, to attend as a spectator the court hearing of the lawsuit for confirmation of invalidity of dismissal filed by Nonparty 1, who had been dismissed by the Defendant, refused to permit the early leave; nevertheless, this falls under the disciplinary ground of unauthorized departure under Item 7 of the disciplinary assessment standards. As to disciplinary ground (2), although in principle monthly leave must be granted at the time designated by the employee, the employer may change the timing where granting monthly leave at the time designated by the employee would cause serious disruption to business operations; since the Plaintiff's monthly leave was disallowed, this likewise falls under the disciplinary ground of unauthorized departure under Item 7 of the disciplinary assessment standards. As to disciplinary ground (3), the main cause of the container-dropping accident was that the cargo within the container was loaded concentrated toward the front; as a result of the accident, the front surface of the container was torn to a size of about 10cm × 20cm and dented inward by about 5cm, but its contents were not damaged, and ordinary simple operations such as pressing the operating switch of the loading/unloading device were often performed even by ground handling employees without an operating license. In light of all the circumstances, including the cause of the dropping accident, the motive for the unlicensed operation, the degree of damage, and the usual manner of work, although the degree of the Plaintiff's responsibility is relatively minor, this falls under the disciplinary ground of negligent operation of machinery and vehicles under Item 40 of the disciplinary assessment standards. As to disciplinary ground (4), the Hankyoreh Shinmun cannot be regarded as unlawful printed matter or an unlawful posted item, and the fact that the Plaintiff wrote on it "Let's make encouraging phone calls to the Hankyoreh Shinmun reporter" does not change the nature of the newspaper into unlawful printed matter, nor can the act of distributing it be regarded as conduct constituting conspiracy for a labor dispute; therefore, the Plaintiff's conduct cannot be found to fall under Item 55 "production and distribution of unlawful printed matter," Item 56 "production and distribution of unlawful posted items," or Item 49 "unlawful conspiracy for a labor dispute" of the disciplinary assessment standards, and thus this part cannot constitute a disciplinary ground.
Accordingly, the disciplinary grounds in items (1), (2), and (3) above alone are insufficient to reach the degree at which continuing the employment relationship between the Plaintiff and the Defendant company would be objectively and severely unjust or unfair, and therefore the disciplinary disposition in this case is invalid as an abuse of discretionary authority.
2. Judgment of this Court
A. As to Ground of Appeal No. 3 (misapprehension of legal principles concerning distribution of unlawful printed matter)
Even where a system requiring permission for the distribution of printed matter has been adopted, this cannot be used to prohibit even legitimate activities of a labor union for its proper business; therefore, whether such distribution is legitimate should not be judged solely by whether permission was obtained, and in order to determine the legitimacy of such conduct, the content of the printed matter, the number of copies, the timing, target, and method of distribution, and the resulting impact on the enterprise or its business, among other factors, should be the criteria (see Supreme Court Decision 92Nu4253 rendered on June 23, 1992; Supreme Court Decision 91Nu5020 rendered on March 13, 1992).
Although there are some respects in which the reasoning of the court below is not entirely appropriate, upon examination of the record, it can be accepted that the court below's determination that the Plaintiff's distribution of the Hankyoreh Shinmun does not constitute a disciplinary ground was correct, and there is no illegality of misapprehension of legal principles as asserted in the grounds of appeal therein.
B. As to Ground of Appeal No. 1 (assertion of misapprehension of facts due to violation of the rules of evidence) and Ground of Appeal No. 2 (assertion of misapprehension of legal principles concerning just cause for dismissal)
(1) The court below found that when the Plaintiff requested early leave from ○○○ around 13:20 on May 26, 1992, ○○○ initially permitted it but then, upon learning that the purpose of the early leave was to attend as a spectator the court hearing of the lawsuit for confirmation of invalidity of dismissal filed by Nonparty 1, a dismissed employee of the Defendant company, refused to permit the early leave in order to prevent this; however, this finding is difficult to accept.
It appears that the evidence adopted by the court below in making this factual finding consisted of Exhibit Ga No. 14, Exhibit Eul No. 7-2, and the testimony of witness ○○○.
However, according to the record, no one was present around the Plaintiff at the time the Plaintiff requested early leave from ○○○, and Exhibit Ga No. 14 and Exhibit Eul No. 7-2 merely record the Plaintiff's own statements, and the testimony of witness ○○○ is also merely hearsay derived from the Plaintiff, whereas ○○○ himself stated that, at the time the Plaintiff requested early leave, he refused the request from the outset due to a shortage of manpower in Team 15 of the 2nd International Ground Handling Section to which the Plaintiff belonged. Therefore, the circumstances and grounds for ○○○'s refusal of the Plaintiff's early leave can ultimately only be determined based on the credibility of the respective statements of the Plaintiff and ○○○ in light of the circumstances at the time.
According to the record, Team 15 of the 2nd International Ground Handling Section consists of 10 employees (1 team leader, 2 guide personnel, 2 special equipment operators, 3 tow tractor drivers, and 2 ground handling employees) working as a team to perform tasks such as guiding aircraft arrivals and departures and loading and unloading baggage. At the time, the team leader, Nonparty ○○○, was on leave, and another ground handling employee, Nonparty ○○○, was undergoing mobilization reserve forces training, such that only 8 personnel were available for work, and it can be seen that a minimum of 8 personnel were required to perform the above duties (the Plaintiff himself acknowledges that, since only 8 personnel were available for work at the time, if the Plaintiff too had taken early leave, normal operation of the entire team would have been impossible). In light of these points, the statements in Exhibit Ga No. 14 and Exhibit Eul No. 7-2 and the testimony of witness ○○○, to the effect that ○○○ initially permitted the early leave but then refused it again in order to prevent the Plaintiff's attendance at the aforementioned court hearing, are difficult to readily believe (moreover, the Plaintiff asserts that he originally belonged to Team 11 of the 2nd International Ground Handling Section, that Team 11 had May 26, 1992 as a day off, and that the Defendant changed the Plaintiff's assignment to Team 15 on May 12 of that year in order to prevent the aforementioned court attendance; if that is so, it would be even less likely that ○○○ would have initially permitted the Plaintiff's early leave). Nevertheless, the court below, relying on the statements in Exhibit Ga No. 14 and other evidence, found as fact that ○○○ had initially permitted the Plaintiff's early leave but then reversed this in order to prevent the aforementioned court attendance; this constitutes a misapprehension of facts in violation of the rules of evidence.
(2) According to the record, it can be seen that the Plaintiff's act, while engaged in cargo unloading work for an aircraft, of mounting the cargo loading/unloading device (CGO LOADER) without a license and operating the switch to move a container, thereby causing an accident in which the container fell to the ground, falls under the disciplinary ground of negligent operation of machinery and vehicles under Item 40 of the Defendant company's disciplinary assessment standards; and that, according to the Defendant company's disciplinary assessment standards, for unauthorized departure, the available disciplinary measures are suspension, reprimand, and salary reduction, while for negligent operation of machinery and vehicles, the available disciplinary measures are dismissal, recommended resignation, demotion, suspension, salary reduction, and reprimand, and that aggravated punishment may be imposed on a person subject to discipline two or more times within one year.
Taking into account the following: that at the time of the unauthorized departure, the Plaintiff requested afternoon early leave only after the afternoon work hours had already begun; that ○○○ refused the early leave because, if the Plaintiff too took early leave, normal performance of duties would be impossible; that the Plaintiff, well aware of these circumstances, nonetheless left without authorization for the reason—not even truly necessary—of attending as a spectator the court hearing of the lawsuit for confirmation of invalidity of dismissal filed by a dismissed employee of the Defendant company; that the Defendant company's aircraft guidance and cargo loading/unloading operations must be performed without disruption in accordance with aircraft takeoff and landing schedules, and that disruptions in such operations could directly lead to flight delays, late arrivals, and cancellations, which would be expected to cause considerable damage to the Defendant company's external credibility, economic loss, and passenger inconvenience, such that, in light of the special nature and public interest character of aircraft operations, this disciplinary ground cannot be lightly assessed (even though, in this case, Team 15's work was successfully carried out through manpower support from another team, this was the result of the Defendant company's efforts to remove the operational obstacle caused by the Plaintiff's unauthorized departure); and the degree of danger involved in the container-dropping accident in this case, which arose from the Plaintiff's operation of the switch of the loading/unloading device without a license in disregard of the regulations (in light of the fact that, since there is a risk of personal injury or damage to expensive cargo when a container falls, the Defendant company's work standards manual expressly states that container loading/unloading work must be performed only by holders of a large vehicle operating license, always exercising care and attention to safety, it cannot be said, as found by the court below, that the degree of the Plaintiff's responsibility for this was minor, even though the actual degree of damage resulting from the dropping accident was not particularly great)—considering all of the foregoing comprehensively, the above disciplinary ground against the Plaintiff falls under a cause attributable to the employee of such a degree that, in light of generally accepted social norms, the employment contract cannot be continued, and therefore it cannot be said that the disciplinary disposition in this case constituted an abuse of disciplinary authority or exceeded the scope of disciplinary discretion, or was made without just cause.
(3) In conclusion, the court below committed an illegality affecting the judgment by mistakenly finding some of the facts concerning the disciplinary grounds and misapprehending the legal principles concerning just cause for disciplinary dismissal. The arguments in Grounds of Appeal Nos. 1 and 2, which point this out, are well-founded.
3. Conclusion
Therefore, without further addressing the remaining grounds of appeal, the judgment below is reversed and the case is remanded to the court below, and it is so decided as stated in the Order by the unanimous opinion of the participating Justices.
Justice Lee Im-su (Presiding Justice), Justice Kim Seok-su, Justice Jeong Gwi-ho (Justice in charge), Justice Lee Don-hee