[Plaintiff, Appellee]
[Defendant, Appellant] Chairman of the National Labor Relations Commission (중앙노동위원회)
[Intervenor assisting the Defendant] Appellant Sebang Tourist Co., Ltd., Attorney Nam Myeong-jin as Litigation Counsel
[Judgment Below] Seoul High Court Judgment of March 25, 1994, Case No. 93Gu7008
[Order]
All appeals are dismissed.
Of the costs of appeal, the portion arising from the intervention shall be borne by the Intervenor assisting the Defendant, and the remainder shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined together.
1.
Article 26 of the Administrative Litigation Act (행정소송법) provides that "the court may, when it deems it necessary, conduct evidentiary examination ex officio, and may render a determination on facts not asserted by the parties," thereby recognizing a partial exception to the principle of party presentation (변론주의). Accordingly, in administrative litigation, even with respect to facts not clearly asserted by the parties, the court may, when it deems it necessary, examine and investigate the matter ex officio based on materials appearing in the record, and may render its determination on that basis
(see Supreme Court Decision 92Nu3199 delivered on July 10, 1992;
Decision 91Nu2854 delivered on November 8, 1991;
Decision 87Nu1182 delivered on April 27, 1988; Decision 68Nu21 delivered on July 29, 1969, among others).
Moreover, in litigation contesting a reexamination ruling on a remedy for unfair dismissal under Article 27-3 of the Labor Standards Act (근로기준법), the burden of asserting and proving the legitimacy of the dismissal lies with the party asserting it. Accordingly, even if the court, in the course of rejecting an assertion regarding the legitimacy of the dismissal, recognizes a fault of the worker that the worker did not specifically assert, this does not violate the principle of party presentation
(see Supreme Court Decision 90Da9353 delivered on July 12, 1991).
Accordingly, in determining the legality of the reexamination ruling at issue in this case, the court below, based on materials appearing in the record, found that Article 52, Items 1 and 3 of the Rules of Employment of the company that is the Intervenor assisting the Defendant (hereinafter "the Intervenor company") conflict with the collective bargaining agreement and therefore cannot serve as grounds for dismissing the Plaintiff, and that the grounds of dismissal applied to the Plaintiff could not otherwise be found to fall under any of the disciplinary grounds set forth in the collective bargaining agreement. On this basis, the court below rejected the assertions of the Defendant and the Intervenor company that the dismissal in this case was justified, citing grounds not asserted by the Plaintiff, and concluded that the dismissal in this case was unjust. This does not constitute, as argued, a violation of the principle of party presentation or a misunderstanding of the legal doctrine on the burden of assertion. Accordingly, the argument on this point is without merit.
2.
Where a collective bargaining agreement explicitly provides that dismissal must be governed by the collective bargaining agreement and that dismissal may not be effected pursuant to the rules of employment, or provides that "a worker may not be dismissed for any reason other than those specified in the collective bargaining agreement," or where, with respect to the same disciplinary grounds, the provisions of the collective bargaining agreement and those of the rules of employment conflict with each other, the employer may discipline a worker only on the basis of the disciplinary grounds specified in the collective bargaining agreement
(see Supreme Court Decision 93Da26151 delivered on June 14, 1994;
Decision 93Da62126 delivered on June 14, 1994;
Decision 92Da48697 delivered on April 27, 1993;
Decision 92Nu13035 delivered on January 15, 1993, among others).
Article 21 of the collective bargaining agreement of the Intervenor company clearly provides that "the Company may not discipline a union member except in cases falling under any of the following items," and sets forth the grounds for discipline as follows: ① where there is physical evidence that the member caused enormous loss to the Company by intentionally refusing to perform or obstructing the performance of duties; ② a person who, through immoral conduct or by using drunken violence/assault, disrupted order by destroying the community of the Company; ③ where there is a fact of intentionally causing enormous loss to the Company or of embezzlement; ④ a person who was absent without leave for seven days or more, or who habitually had poor attendance; and ⑤ for matters other than the above, the matter shall be decided through consultation between labor and management at the workplace level. Accordingly, in the case of the Intervenor company, disciplinary action against a worker may be taken only on the basis of the grounds for discipline set forth in Article 21 of the above collective bargaining agreement.
Meanwhile, the misconduct (the facts alleged as grounds for discipline) that the Intervenor company relied upon as the grounds for disciplining the Plaintiff was solely the engine failure of the tour bus (Seoul 5-Ba 1867), owned by the Intervenor company, which occurred on November 22, 1992, due to the Plaintiff's negligent vehicle management (see Defendant's Exhibit No. 5-2). Although Defendant's Exhibits Nos. 5-1 and 5-3 list facts that the Plaintiff had previously caused vehicle accidents and had been subjected to disciplinary action for refusing dispatch instructions, and Defendant's Exhibit No. 14 lists poor work performance, failure to commute to work, insubordination with respect to dispatch instructions, and incitement to slowdown, among other matters, the disciplinary resolution record shows that the resolution was made solely with respect to the above misconduct dated November 22, 1992. Accordingly, these other matters cannot be regarded as having constituted grounds for discipline; rather, they appear to have been recorded merely for the purpose of determining the appropriate level of discipline in connection with the above misconduct of November 22, 1992. Moreover, according to the description in Defendant's Exhibit No. 1, the Intervenor company's representative director, ○○○, clearly stated, in the procedure for the application for remedy for unfair dismissal filed by the Plaintiff with the Seoul Regional Labor Relations Commission, that matters concerning grounds for which the Plaintiff had previously been disciplined were not being raised as an issue pursuant to the principle against double jeopardy (일사부재리), and that the sole ground for the Plaintiff's dismissal was the above misconduct dated November 22, 1992, and further stated that the basis for the dismissal was Article 52, Items 1 and 3 of the Intervenor company's Rules of Employment.
Given the above, the misconduct in question cannot be found to fall under "a person who habitually had poor attendance" as set forth in Article 21, Item 4 of the above collective bargaining agreement. Furthermore, even though the Disciplinary Committee, composed of equal numbers of labor and management representatives, resolved to dismiss the Plaintiff, such resolution cannot be deemed to constitute a determination on grounds for discipline through labor-management consultation as set forth in Article 21, Item 5 of the above collective bargaining agreement. Moreover, there is no evidence in the record showing that, at the time of the Plaintiff's above misconduct, any determination on grounds for discipline through labor-management consultation as set forth in Article 21, Item 5 of the above collective bargaining agreement had been made. Accordingly, the Plaintiff could not have been dismissed pursuant to Article 21, Item 5 of the collective bargaining agreement on the basis of the above misconduct either. (In its brief of grounds for appeal, the Intervenor company asserts that, after the conclusion of the above collective bargaining agreement, labor and management reached an agreement approving the contents of the Rules of Employment as a supplement to the collective bargaining agreement, and submits, as supporting material, an agreement document signed and sealed by the Intervenor company and the chapter chairman of the Intervenor company's labor union. However, even according to this agreement document, it was concluded on November 25, 1992, whereas the misconduct relied upon as grounds for disciplining the Plaintiff occurred on the 22nd of the same month. Accordingly, even assuming that the agreement document, having been concluded on the basis of the collective bargaining agreement, is to be regarded as having the effect of a collective bargaining agreement, such effect would in principle extend only prospectively from the date of its conclusion and would not have retroactive effect. Therefore, the Plaintiff could not be disciplined on the basis of the above agreement document, which was concluded after the Plaintiff's above misconduct occurred.)
Accordingly, the fact-finding and determination of the court below, which are to the same effect, are justified, and there is no error therein, as argued, in misconstruing Article 36, Paragraph 1 of the Trade Union Act (노동조합법), misinterpreting the Intervenor company's Rules of Employment and collective bargaining agreement, misunderstanding the legal doctrine on disciplinary dismissal, insufficient deliberation, error in the selection of evidence, or failure to render a determination on an issue. All the arguments are without merit.
3.
Accordingly, all appeals are dismissed, and the costs of appeal are to be borne by the losing parties, with the portion arising from the intervention to be borne by the Intervenor assisting the Defendant, and the remainder by the Defendant. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Supreme Court Justices: Jeong Gwi-ho (Presiding Justice), Kim Seok-su, Lee Don-hee, Lee Im-su (Justice in Charge)