[Plaintiff, Appellant]
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for Defendant] Choi Byeong-tae
[Lower Court Judgment]
Seoul High Court Decision 92Gu7667, delivered January 7, 1993
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
1. As to Grounds 1 and 2
According to the reasoning of the judgment below, the lower court found, based on the evidence cited, as follows: on October 14, 1991, the Plaintiff obtained three days of sick leave complaining of knee pain and left work, but returned to the company around 12:00 that day while intoxicated and forcibly demanded that the Intervenor, who is the company president, pay a congratulatory gift of money for the birthday of an employee named Cheon Hae-un; when other employees calmed him down, he went home. The following day, October 15, the Plaintiff was intoxicated from the morning and visited the company office twice, demanding the payment of the above congratulatory money and obstructing the employees' work. When he visited the company office for the third time that day around 17:00, he ended up drinking together with the Intervenor and co-manager Kim Hun in the office; at that time, when the Plaintiff again raised the same issue, Kim Hun scolded him with abusive language, and the Plaintiff, in turn, protested, telling him not to swear at him. When Kim Hun then grabbed the Plaintiff's waist to drag him outside, the Plaintiff lunged at Kim Hun, grabbed and shook his collar, and assaulted him, tearing Kim Hun's dress shirt. The lower court further found that, prior to this, the Plaintiff had, only a week after joining the company, driven a company vehicle without authorization and caused an accident, for which he received a warning, and that he had frequently consumed alcohol during working hours and had received several warnings for it, and that the Intervenor dismissed the Plaintiff as a disciplinary measure on the ground that the Plaintiff's above conduct fell under the grounds for dismissal set forth in Article 52, Subparagraph 11 and Subparagraphs 19 through 20 of the Rules of Employment (취업규칙). Based on these findings, the lower court determined that the Plaintiff's above conduct constituted grounds for dismissal as provided in the Rules of Employment, that there was justifiable cause for the dismissal, and therefore that the dismissal of the Plaintiff in this case was valid.
However, upon examination of the record, among the above findings of fact, there is no evidence to support the finding that the Plaintiff, only a week after joining the company, drove a company vehicle without authorization and caused an accident for which he received a warning, and that he frequently consumed alcohol during working hours and received several warnings therefor; the lower court's finding of fact on this point constitutes a violation of the rules of evidence in that it found facts without supporting evidence. However, the remaining portions of the findings can be supported by the evidence cited, and there is no violation of the rules of evidence or misapprehension of facts due to incomplete deliberation as argued in the grounds of appeal.
Nevertheless, it appears that the lower court considered the record of unfaithful service—namely, the collision accident during the unauthorized driving and the warnings received for drinking during working hours—not as grounds for the disciplinary action itself but as circumstances taken into account in its assessment, and since the disciplinary dismissal of the Plaintiff in this case would still be justified based solely on the remaining misconduct, excluding the above facts, the mistake of fact regarding that portion does not affect the outcome of the judgment. Moreover, the lower court's determination that there was justifiable cause for the dismissal in this case is correct, and there is no error of misapprehension of the applicable law as argued in the grounds of appeal. This ground of appeal is without merit.
2. As to Ground 3
According to the reasoning of the judgment below, the lower court determined that the Plaintiff's above conduct fell under a case where the employee, through intent or gross negligence, breached his duty of compliance or committed an act of betrayal to such an extent that the employee does not deserve protection through advance notice of dismissal, or where the employee intentionally caused substantial disruption to the business or property damage, and therefore that the dismissal, even without advance notice of dismissal or payment of compensation in lieu of advance notice, was not unlawful.
However, although the Plaintiff's misconduct as described above constitutes justifiable cause for dismissal, it cannot be deemed to fall under the exception to advance notice of dismissal provided in the proviso of Article 27 of the Labor Standards Act (근로기준법), namely, "where the employee intentionally causes substantial disruption to the business or property damage." Accordingly, the lower court's determination on this point constitutes a misapprehension of the legal principles concerning the exceptions to advance notice of dismissal under the Labor Standards Act. Nevertheless, even a dismissal in violation of the duty of advance notice does not affect the private-law validity of the dismissal so long as there is justifiable cause for the dismissal, and therefore the dismissal of the Plaintiff in this case remains valid. Accordingly, the lower court's conclusion, reaching the same result, is correct. This ground of appeal is also without merit.
3. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiff, who has lost the case. The Justices participating in this decision unanimously agree, and it is decided as stated in the Order.
Justice Kim Sang-won (Presiding Justice), Yun Yeong-cheol, Park Man-ho (Justice in Charge)