[Plaintiff, Respondent] Plaintiff's Litigation Representative Attorney Lim Hong-jong and 2 others
[Defendant, Appellant] Chairman of the National Labor Relations Commission
[Intervenor for the Defendant, Appellant] Sambo Printing Machinery Industrial Co., Ltd., Litigation Representative Mirae General Law Firm, Attorney in Charge Kim Byeong-jae and 2 others
[Judgment Below] Seoul High Court Decision 92Gu19912, decided September 16, 1994
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal by the Defendant and the Litigation Representative of the Defendant's Intervenor are examined together.
1. According to the reasoning of the judgment below, the court below, citing the evidence set forth therein, found that the Plaintiff, due to the misconduct as stated in its ruling, received disciplinary measures in the form of submission of a letter of apology (示末書) five times from the Intervenor company for the Defendant (hereinafter referred to as "the Intervenor company"), and refused to submit the letter of apology each time. The court below then held that although such conduct by the Plaintiff constituted the disciplinary ground under Article 24, Item 5 of the collective agreement, namely "when a person has submitted letters of apology five or more times in a year," in light of various circumstances—including that the reasons for each of the Plaintiff's letters of apology did not appear to be so serious, that the collective agreement did not directly establish "submission of letters of apology five or more times in a year" as a ground for disciplinary dismissal but merely as a ground for discipline in general, that the types of discipline were divided into warning, reprimand, wage reduction, suspension from work, and disciplinary dismissal, and that "submission of three letters of apology" was set as a ground for reprimand, which is significantly lighter than disciplinary dismissal—the court below determined that the dismissal in this case was excessively severe in relation to the disciplinary grounds, constituting an abuse of discretion or a departure from the permissible scope in determining the disciplinary measure, and thus was an unjust dismissal without just cause for dismissal as required under Article 27 of the Labor Standards Act (근로기준법).
2. However, the above determination by the court below regarding the legitimacy of the disciplinary dismissal is difficult to readily accept.
A. Article 24 of the collective agreement of the Intervenor company provides that "the company may discipline a union member who falls under any of the following items," and lists in Item 5 "when a person has submitted letters of apology five or more times in a year." Article 25 provides for the types of discipline as warning, reprimand, wage reduction, suspension from work, and disciplinary dismissal, and provides that a reprimand shall be given "upon the third submission of a letter of apology."
Since the collective agreement thus provides "submission of letters of apology five or more times in a year" as a ground for discipline, it follows that where the number of times a person has submitted a letter of apology or received a disciplinary measure requiring submission of a letter of apology is less than five in a year, that person cannot be referred to disciplinary proceedings on that ground alone. Nevertheless, the same collective agreement, in providing for the types of discipline corresponding to the prescribed disciplinary grounds, also provides that reprimand shall be given "upon the third submission of a letter of apology," which cannot but be regarded as contradictory to the aforementioned provision.
Therefore, in order to reasonably interpret these conflicting provisions of the collective agreement in favor of the worker, the reference to "upon the third submission of a letter of apology," appended to the reprimand provision as one of the enumerated types of discipline, must ultimately be regarded as meaningless.
Accordingly, it was erroneous for the court below to determine the legitimacy of the dismissal in this case on the basis of its view that "upon the third submission of a letter of apology" under the collective agreement was provided solely as a ground for reprimand.
B. In determining the legitimacy of a disciplinary dismissal made on the ground of "submission of letters of apology five or more times in a year," which is a disciplinary ground under the collective agreement of the Intervenor company, the determination should not be made simply on the basis of whether the misconduct of the person subject to discipline formally corresponds to the above disciplinary ground. Rather, it should be determined based on whether, through the fact that the person has "submitted letters of apology five or more times in a year or received disciplinary measures requiring submission of letters of apology five or more times in a year," circumstances exist from which it can be considered, in light of social norms, that the employer has reached a state in which it can no longer continue the employment relationship with the worker in question. In making such a determination, various circumstances must be comprehensively examined, including: the circumstances under which the person subject to discipline came to receive the disciplinary measures requiring submission of letters of apology; the specific content and degree of the misconduct that led to each such measure; the risk to corporate order, such as the danger of disrupting the hierarchical order of the enterprise, arising therefrom; whether the person subject to discipline, in submitting the letter of apology pursuant to the disciplinary measure, demonstrated reflection on his or her misconduct; the person's past work attitude; and whether the person has a history of having received other disciplinary measures for violations of corporate order.
In the present case, the circumstances under which the Plaintiff received disciplinary measures requiring submission of letters of apology five times from the Intervenor company within less than one year from October 15, 1991, are as stated in the judgment below. Among the specific instances of misconduct for which the Plaintiff received these measures, some correspond to misconduct that, under the rules of employment, should originally have resulted in suspension from work—a measure heavier than the disciplinary measure of submitting a letter of apology. Moreover, some of the instances involved insubordination against a superior's legitimate work order, and thus the degree of misconduct cannot be regarded as light. If such conduct by a worker were to be left unaddressed, there would be a risk of significant disruption to the hierarchical order within the enterprise. Furthermore, the Plaintiff never once submitted the letter of apology required by the disciplinary measures, and thus does not appear to have shown reflection on his misconduct; rather, the Plaintiff consistently maintained an attitude denying the legitimacy of the Intervenor company's exercise of its disciplinary authority with respect to each of the above instances of misconduct. Considering the Plaintiff's past work attitude, as well as the fact that around August 14, 1990, the Plaintiff had submitted a written pledge to the Intervenor company promising not to engage in similar conduct in the future, after having engaged in illegal industrial action—demanding a wage increase contrary to the content of labor-management consultations and inciting other workers to refuse to work—and considering the various circumstances appearing in the record as a whole, it must be found that there existed, on the part of the Plaintiff, a culpable ground, in light of social norms, rendering the continuation of the employment relationship impossible. Therefore, the disciplinary dismissal of the Plaintiff by the Intervenor company must be held to have had just cause as required under Article 27 of the Labor Standards Act.
C. Notwithstanding these circumstances, the court below's determination, on the grounds stated in its judgment, that the dismissal in this case was an unjust dismissal, amounts to a mistaken finding of fact regarding the legitimacy of the disciplinary dismissal and, further, a misunderstanding of the legal principles concerning "just cause" under Article 27 of the Labor Standards Act. This error clearly affected the judgment, and therefore the argument contesting this point is well-founded.
3. Accordingly, the appeal is accepted, the judgment below is reversed, and the case is remanded to the court below. This judgment is rendered as stated in the Order, by the unanimous opinion of the participating Justices.
Justice Lee Im-su (Presiding Justice), Kim Seok-su, Jeong Gwi-ho (Justice in Charge), Lee Don-hui