[Plaintiffs, Appellants] Plaintiff 1 and 1 other Plaintiffs' Attorneys Lee Won-je and 4 others
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for the Defendant] ○○○ Attorney Lee Byung-don
[Judgment Below] Seoul High Court Decision 92Gu19677 rendered on August 25, 1994
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
1. We examine the second ground of appeal.
Article 26, Paragraph 1 of the Collective Bargaining Agreement of Daehan Hospital provides that, when it is intended to discipline a union member, the date, time, and place of the disciplinary committee meeting must be notified to the party concerned and to the union five days prior to the holding of the disciplinary committee meeting. However, even in a case where the fact that a matter has been referred to disciplinary action is notified to the union member subject to discipline without allowing a five-day grace period, if the person subject to discipline personally appears before the disciplinary committee without raising an objection regarding the notice procedure and makes a sufficient statement in his or her defense, such procedural defect must be deemed to have been cured.
(See Supreme Court Decisions 90Da15884 rendered on February 8, 1991; 92Da11220 rendered on November 13, 1992; 92Da27089 rendered on May 11, 1993, etc.)
In the present case, although there was a defect in that the Intervenor for the Defendant decided to hold the disciplinary committee meeting concerning the Plaintiffs on January 8, 1992, but notified the Plaintiffs thereof only on January 3 of the same month, four days prior thereto, since the Plaintiffs did not raise any objection thereto and made statements in their defense without raising the issue, the aforementioned procedural defect was cured. Accordingly, this cannot be regarded as grounds for invalidating the disciplinary resolution. This point of appeal is without merit.
2. We examine the first ground of appeal.
A. The grounds for disciplinary action against Plaintiff 1 relied upon by the court below were: (i) negligence in duties, including maintaining the central supply room in an unsanitary condition, and (ii) failure to comply with the order to submit a written statement of self-reflection (simalseo) following the disciplinary reprimand imposed upon him.
First, with respect to the allegation that he kept the central supply room's cleaning conditions unsanitary, the evidence consistent with this includes Defendant's Exhibit No. 14 (submission of written statement of self-reflection), Defendant's Exhibit No. 15-2 (request for disciplinary action), Defendant's Exhibit No. 17 (request for appearance), and Defendant's Exhibit No. 33 (newspaper article). Except for Defendant's Exhibit No. 33, all of these are documents related to the disciplinary proceedings, merely stating that an article was published in the Hanyang Bukbu Newspaper (Defendant's Exhibit No. 33) reporting that the sanitary conditions of the hospital's central supply room were poor. While it can be acknowledged that an article was published in the said Hanyang Bukbu Newspaper under the title "Deteriorated and Unsanitary Facilities" reporting that the sanitary conditions of the hospital's central supply room were poor, when the overall content of the article is examined, it points out the hospital's deteriorated facilities and shortage of personnel, citing the central supply room merely as one example of such deteriorated facilities, rather than stating that the sanitary conditions of the central supply room became poor because the said Plaintiff kept its cleaning conditions unsanitary. Therefore, this article alone is insufficient to establish that the said Plaintiff kept the cleaning conditions of the central supply room unsanitary.
Next, with respect to the failure to submit the written statement of self-reflection, since Daehan Hospital's personnel regulations provide that an employee who has received a disciplinary reprimand must submit a written statement of self-reflection, the failure to submit such a statement following a disciplinary reprimand may itself constitute a new ground for disciplinary action, as it amounts to a refusal of a legitimate business order of the employer. However, since this ground for disciplinary action concerns the relatively minor misconduct of failing to submit a written statement of self-reflection following a prior disciplinary action, absent special circumstances, choosing dismissal—the most severe among the types of disciplinary measures—for this reason would constitute a departure from the proper scope of disciplinary authority. (See Supreme Court Decision 90Da12991 rendered on December 24, 1991.)
Accordingly, the court below's determination, based on the aforementioned evidence, that the grounds for disciplinary action against the said Plaintiff were established, and its further determination that the disciplinary dismissal was justified, constitute errors of insufficient deliberation, misapprehension of the rules of evidence resulting in mistaken findings of fact, and misapprehension of the legal principles concerning the scope of disciplinary discretion. Therefore, this point of appeal, which points out these errors, is meritorious.
B. The grounds for disciplinary action against Plaintiff 2 relied upon by the court below were: (i) his efforts to secure criminal punishment of the hospital's management, and (ii) his act of informing the media, thereby publicly disclosing to the outside world that Daehan Hospital was bad.
Of course, an act of filing a complaint or accusation against the employer with investigative authorities, or submitting a petition or the like containing content that disparages the employer's personal character, to other institutions without clear supporting evidence, constitutes a ground for disciplinary action (see Supreme Court Decision 91Da42982 rendered on June 26, 1992), and an act of publicly disparaging the company with content that differs from the truth or is exaggerated also constitutes a legitimate ground for disciplinary action. Accordingly, if the said Plaintiff, without clear supporting evidence, made efforts to secure criminal punishment of the hospital's management or informed the media, thereby publicly disclosing that Daehan Hospital was bad, using content that differs from the truth or is exaggerated, this would constitute a legitimate ground for disciplinary action.
However, where the content of the complaint, accusation, or media report is true or has substantial grounds, even if such conduct is deemed to constitute a ground for disciplinary action, disciplining the employee to the extent of dismissal on this basis would constitute a departure from the proper scope of discretion, and this is especially so in a case such as the present one, involving a hospital, which has a strong public character.
As found by the court below, the content of the said Plaintiff's complaints, petitions, and media reports concerned matters closely related to the public interest, such as unpaid wages, unlicensed medical practice, shortage of nurses, insufficient facilities, and poor sanitary conditions. Furthermore, according to the record (Plaintiff's Exhibit No. 6-3, Plaintiff's Exhibit No. 12, Plaintiff's Exhibit No. 13, etc.), a substantial portion of the content of the said Plaintiff's petitions and complaints was found to be true, and it appears that unpaid night-shift allowances were subsequently paid as a result. In light of this, the content of the said Plaintiff's petitions and complaints must be regarded as true, or at least as having substantial grounds.
Therefore, the court below should have further deliberated on whether the content of the said Plaintiff's petitions and complaints was true or had substantial grounds, and then determined whether the disciplinary dismissal of the said Plaintiff was justified. Nevertheless, the court below held, for the reasons stated in its judgment, that the disciplinary dismissal of the said Plaintiff could not be deemed to constitute a departure from the proper scope of discretion, thereby committing errors of insufficient deliberation and misapprehension of the legal principles concerning the scope of discretion. This point of appeal is meritorious.
3. Therefore, the judgment below is reversed, and the case is remanded to the court below. This decision is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Ahn Yong-deuk (Presiding Justice), Cheon Gyeong-song, Ji Chang-gwon, Shin Seong-taek (Justice in Charge)