[Plaintiff, Appellant] Plaintiff
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for the Defendant] Shindongbang Co., Ltd. (Attorney: Yoo Tae-hyun, Saesidae Law Firm)
[Lower Court Judgment] Seoul High Court Decision 99Nu7908, decided September 1, 2000
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal (including, to the extent they supplement the grounds of appeal, the supplementary brief on grounds of appeal submitted after the expiration of the period for submitting the grounds of appeal) are examined.
1. As to whether the standby order (order to wait for reassignment) in this case is unjust for failing to state its grounds
According to the record, Article 16 of the personnel regulations of the company that is the Intervenor for the Defendant (hereinafter "Intervenor Company") provides for the grounds on which a position may be relieved and a standby order issued, and neither the said personnel regulations nor the rules of employment or collective agreement contain any provisions concerning the form or procedure of a standby order. Since a standby order falls within the authority over personnel matters vested in the person holding personnel authority, the mere failure to specify the grounds therefor cannot in itself render the standby order void.
The lower court's determination to the same effect is acceptable, and there is no illegality therein, such as insufficient deliberation or violation of the rules of evidence, as alleged in the grounds of appeal.
This part of the grounds of appeal cannot be accepted.
2. As to whether the standby order in this case was issued as a retaliatory measure for failure to submit a letter of resignation
The lower court, with respect to the argument that the Plaintiff's removal from position and standby order received from the Intervenor Company on January 9, 1998 was unjust because it was carried out as a retaliatory measure against the Plaintiff's refusal to comply with the Intervenor Company's demand—made without any justifiable reason—that he submit a letter of resignation, determined that there was no evidence to establish that the standby order was issued as such a retaliatory measure as alleged, and rather, based on the facts found as stated in its reasoning, determined that the Intervenor Company issued the standby order to the Plaintiff pursuant to Article 16 of the personnel regulations.
Examining the relevant evidence in light of the record, the lower court's fact-finding and determination are acceptable, and there is no illegality therein, such as insufficient deliberation or violation of the rules of evidence, as alleged in the grounds of appeal.
This part of the grounds of appeal likewise cannot be accepted.
3. As to whether the standby order in this case is justifiable
A. Since it is indispensable for an enterprise, in order to continuously maintain its activities, to redeploy its workforce or adjust the supply and demand thereof, personnel orders, including standby orders, in principle fall within the inherent authority of the employer holding personnel authority. Accordingly, considerable discretion must be recognized in the employer with respect to such personnel orders within the scope necessary for business operations, and such orders cannot be deemed unlawful absent special circumstances, such as a violation of the Labor Standards Act (근로기준법) or other laws, or an abuse of rights. Whether a standby order falls within the scope of the legitimate exercise of personnel authority must be determined by weighing the business necessity of the standby order against the resulting disadvantage to the employee's livelihood, and by considering whether procedures required under the principle of good faith, such as consultation with the employee, were followed in the process of issuing the standby order. Whether a sincere consultation procedure was conducted with the employee concerned may be considered as one factor in determining whether the exercise of personnel authority was legitimate; however, the mere fact that such a procedure was not followed cannot, by itself, be deemed to render the standby order an abuse of rights and thus naturally void (see Supreme Court Decisions 97Da18165, 18172, decided July 22, 1997; 99Du1984, decided August 20, 1999, etc.).
B. The lower court, based on the evidence it adopted, found the following facts: (1) since the 1991 liberalization of soybean imports, the Intervenor Company had continuously suffered from deteriorating management conditions and declining profitability due to increased inventory of goods and reduced factory operation rates, and, under the IMF regime in late 1997, due to the sharp surge in exchange rates and interest rates, the Intervenor Company incurred a net loss of 17.8 billion won for the 1997 fiscal year, placing the company in a crisis threatening its very survival; (2) in order to overcome this managerial difficulty, the Intervenor Company took measures such as banning the hiring of new employees and the renewal of contracts with temporary employees, redeploying personnel, liquidating marginal businesses, suspending operations, having employees return wages, and reducing various expenses; (3) the Intervenor Company, in agreement with its labor union, established "criteria for accepting letters of resignation" (layoff criteria) under which persons subject to restructuring would be selected by considering personnel evaluation records, disciplinary history, the possibility of promotion at the current rank, and whether the employee currently held a position in a department, and proceeded with personnel reductions on that basis; the Plaintiff fell within these criteria, and, in conjunction therewith, the Intervenor Company carried out an organizational restructuring by abolishing the Development Headquarters and establishing the Development Business Division, then again abolishing the Development Business Division and reducing it to a Development Section and a Consumer Consultation Section directly under the Production Headquarters, as a result of which the Plaintiff's duties were eliminated; and (4) Article 16 of the Intervenor Company's personnel regulations (Removal from Position and Standby) provides: "Employees falling under any of the following may be removed from their position and placed on standby: 1. When it is unavoidable for personnel management purposes due to organizational restructuring; 2. When it is recognized that the employee markedly lacks the ability to perform the relevant duties; 3. When the employee has committed misconduct or caused an incident; 4. The department to which the standby order is issued shall be the personnel department at the head office having personnel authority over the relevant employee." Taking these circumstances together, the lower court determined that the standby order in this case was based on Article 16, Item 1 of the Intervenor Company's personnel regulations, that it had reasonable grounds, and that the criteria for selecting persons subject to standby orders were reasonable and fair, and thus the standby order in this case was justified. The lower court further determined that, considering that the Intervenor Company was in a managerial crisis in late 1997, had completed consultation with its labor union regarding the criteria for accepting letters of resignation, and thus had the substantive requirements in place for issuing a standby order against the Plaintiff, and that the Plaintiff fell within the first-priority category under the said criteria for accepting letters of resignation, even if there was a procedural defect in that the Intervenor Company did not conduct prior consultation with the Plaintiff himself before issuing the standby order, that circumstance alone cannot render the standby order in this case void.
Examining the relevant evidence in light of the record and the aforementioned legal principles, the lower court's fact-finding and determination are acceptable, and there is no illegality therein, such as violation of the rules of evidence, insufficient deliberation, misapprehension of legal principles, or violation of statutes, as alleged in the grounds of appeal.
This part of the grounds of appeal also cannot be accepted.
4. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order, by the unanimous opinion of the participating Justices.
Justice Lee Kyu-hong (Presiding Justice), Song Jin-hoon, Byun Jae-seung (Justice in charge), Yoon Jae-sik