[Plaintiff, Appellant]
[Defendant, Appellee] Daelim Motor Co., Ltd., Litigation Representative Attorney Kim Ik-ha
[Judgment Below] Busan High Court Decision 91Na14796 rendered on July 1, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning] The grounds for appeal are examined. The supplementary brief on grounds for appeal is examined only to the extent that it supplements the grounds for appeal stated in the brief of grounds for appeal.
As to Ground No. 1
1. According to the reasoning of the judgment below, the court below found the following facts: Article 37, Item 2 of the collective agreement concluded between the Defendant company and its labor union provides that "personnel actions and disciplinary actions against union officers shall be subject to prior agreement with the union," and the Defendant company, on September 13, 1990, dismissed the Plaintiff, who was serving as the senior deputy chairman of the labor union, without going through the prior agreement with the labor union as required under the collective agreement. The court below determined that such a prior agreement requirement, unlike a provision requiring the Defendant to obtain the approval or consent of the labor union or to make a joint decision through consultation between labor and management so as to comprehensively restrict the Defendant's authority over personnel and disciplinary matters in accordance with the mutual will of the Defendant company and the labor union, should reasonably be construed as merely requiring the Defendant to notify the labor union in advance of the content of personnel or disciplinary actions against union officers, in order to give the labor union an opportunity to present necessary opinions to ensure fairness in personnel and disciplinary matters and to have the Defendant consider the opinions presented by the labor union as reference material, for the purpose of preventing the normal activities of the labor union from being obstructed by the Defendant's arbitrary exercise of personnel or disciplinary authority against union officers. The court below thus held that dismissal carried out without going through such prior agreement does not necessarily affect the validity of the dismissal. The court below then found that, in this case, the Defendant company had originally scheduled a disciplinary committee meeting concerning the Plaintiff for September 6 of that year, but postponed it to September 10 at the request of the labor union side, and that at the disciplinary committee meeting held at 10:00 on that date, the Plaintiff, along with the union's General Secretary Non-party 1, the head of the Research and Statistics Department Non-party 2, and the acting head of the Education Department Non-party 3, attended and fully stated their positions and opinions; that the Defendant company, in accordance with the results of the deliberation at the said disciplinary committee, decided to dismiss (discharge) the Plaintiff on the ground that the Plaintiff fell under Article 13, Items 5 and 11 of the Defendant company's rules on rewards and punishments; and that, in the meantime, the Defendant company attempted to reach a prior agreement with the labor union regarding this disciplinary action, but the labor union refused, and ultimately the Defendant company dismissed the Plaintiff on September 13 without going through prior agreement with the labor union. The court below determined that, since the Defendant company had sufficiently notified the labor union side in advance of the disciplinary facts against the Plaintiff in dismissing the Plaintiff for disciplinary reasons, and had given the Plaintiff himself and the labor union side an opportunity to state their opinions at the disciplinary committee, and it was only due to the labor union's refusal that prior agreement with the labor union was not reached, it is difficult to view this alone as constituting a material defect in the dismissal procedure such that it would affect the validity of the dismissal.
2. However, where the specific content of a personnel consultation or agreement clause provided in a collective agreement, etc. is to require that the employer give the labor union an opportunity to present its opinion so that the employer may exercise due care in making personnel decisions, failure to go through such a procedure should be viewed as not affecting the validity of the personnel action; however, where it is provided that the employer must obtain the prior consent or approval of the labor union in making personnel decisions, or that personnel decisions must be made through discussion with the labor union resulting in a meeting of the minds, a personnel action taken without going through such a procedure must, in principle, be regarded as void (see this Court's Decisions 91Da4775 rendered on April 14, 1992; 92Da34940 rendered on April 23, 1993, etc.).
However, according to the record, the collective agreement in this case provides in Article 37, Item 2 that "personnel actions and disciplinary actions against union officers shall be subject to prior agreement with the union," while Item 3 provides that "disciplinary action, dismissal, and reassignment of union members shall be subject to prior consultation with the union," thereby using distinct terms — requiring prior agreement for personnel actions and disciplinary actions against union officers, and prior consultation for those against union members. Articles 45 and 46, Paragraph 2 of the same collective agreement also use the terms "consultation" and "agreement" in a distinguishing manner. Accordingly, it is reasonable to interpret the said collective agreement as differentiating the degree of restriction on the Defendant's personnel authority between union officers and union members, and it is reasonable to construe that, while consultation with respect to union members means that an opinion-gathering procedure must be undergone for the prudent exercise of personnel authority, "prior agreement" with respect to personnel actions against union officers means that personnel authority must be exercised only after sincerely exchanging opinions with the labor union and reaching a "meeting of the minds" between labor and management (see this Court's Decision 92Da45735 rendered on July 13, 1993).
Therefore, the determination of the court below that the validity of the disciplinary action is not affected even though the Defendant did not go through the prior agreement based on such exchange of opinions between labor and management in taking the disciplinary dismissal action against the Plaintiff, a union officer, cannot be said to be free from error in misinterpreting the prior agreement clause provided in the collective agreement.
3. Nevertheless, even granting the foregoing, the fact that the collective agreement provides that prior agreement with the labor union must be reached in taking disciplinary dismissal against a labor union officer does not mean that the employer's exercise of disciplinary authority over its employees can itself be denied. Accordingly, the labor union's exercise of the right of prior agreement must be reasonably exercised in accordance with the principle of good faith, and if, despite the existence of objectively clear and serious grounds for discipline against the person to be disciplined, the labor union side refuses the disciplinary action or refuses prior agreement solely on the ground that the person to be disciplined is a union officer, this constitutes either a waiver of the right of agreement or an abuse of the right to refuse agreement, and in such a case, the disciplinary action should not be deemed void merely because prior agreement was not obtained (see this Court's Decisions 92Da45735 rendered on July 13, 1993; 92Da50263 rendered on July 13, 1993, etc.).
However, according to the record, in this case, although the collective agreement provides that prior agreement of the labor union must be obtained for disciplinary dismissal of union officers, there is no provision whatsoever in the collective agreement or other personnel-related regulations concerning the specific procedure or method of such prior agreement. According to the facts found by the court below, in this case, the Plaintiff, as the senior deputy chairman of the labor union, directly caused enormous property damage to the Defendant by leading a prolonged illegal strike, committed the crime of violating the National Security Act (국가보안법, Gukga Boanbeop) and absconded to avoid the execution of an arrest warrant, thereby being absent without leave for 53 days; and was sentenced by the court of first instance to one year and six months' imprisonment with three years' suspension of execution and one year and six months' suspension of qualification for the same crime, which objectively and clearly falls under "where an employee has been absent without leave for seven days or more," a ground for disciplinary dismissal under Article 13, Item 5 of the rules on rewards and punishments. The labor union's disciplinary committee members had received notice from the Defendant company of the convening of the disciplinary committee concerning the Plaintiff and were fully aware of the above circumstances, and the Defendant company made every effort to reach agreement with the labor union side, even postponing the convening of the disciplinary committee once in an attempt to reach agreement with the labor union side; nevertheless, the labor union side refused prior agreement, and all of its disciplinary committee members unilaterally opposed the disciplinary action against the Plaintiff during the deliberation process of the said disciplinary committee without presenting any reasonable basis or reason, such that agreement between labor and management was not reached. Given these circumstances, it is reasonable to view that the labor union side abused its right to refuse agreement under the above personnel agreement clause. Therefore, even though the Defendant company took this disciplinary dismissal action against the Plaintiff without reaching prior agreement with the labor union, it should be regarded as valid (see the above Decision 92Da45735).
If so, the conclusion of the court below that the disciplinary dismissal of the Plaintiff is valid even though it was carried out without prior agreement with the labor union side is correct, and therefore the court below's aforementioned error in the interpretation of law does not affect the outcome of the judgment, and the argument on this point is without merit.
As to Ground No. 2
1. According to the reasoning of the judgment below, the court below found the following facts: the Defendant company's employment rules and personnel regulations provide that if an employee wishes to be late or absent, the employee must report in advance or submit a leave-of-absence notice according to the prescribed procedure, and in cases of urgent unavoidable circumstances, must report or submit a leave-of-absence notice without delay afterward and obtain approval, and if approval is not obtained through such report or notice, the absence shall be deemed unauthorized absence (Article 30 of the employment rules, Article 20 of the personnel regulations); that separate rules on rewards and punishments are to be established regarding commendation and discipline of employees (Article 43 of the employment rules); that under the said rules on rewards and punishments, commendation and discipline of employees shall be deliberated by the rewards and punishments committee (Article 3 of the rules on rewards and punishments); that the types of disciplinary action and their scope are, in order of severity, dismissal (immediate discharge), suspension, removal from position, salary reduction, and reprimand (Article 12 of the said rules); and that continuous unauthorized absence of an employee for seven days or more and receiving a sentence of a fine or heavier punishment, etc. are prescribed as grounds for dismissal (Article 13, Items 5 and 11 of the said rules). The court below further found that the Plaintiff, as the labor union's organizing department head, purchased and possessed subversive publications and distributed them through the labor union library while engaging in radical labor movement activities from around early March 1989 to around mid-December of that year, and was elected senior deputy chairman on July 1, 1989; that upon the arrest of the union chairman on March 8, 1990, the Plaintiff acted in the chairman's stead and took overall command of the union's operations, leading an illegal strike lasting about 30 days in connection with wage negotiations, thereby causing the Defendant company damage of approximately 17.3 billion won; that around April 2 of that year, a warrant for the Plaintiff's arrest was issued in advance on suspicion of violating the National Security Act, and a nationwide manhunt was ordered, whereupon the Plaintiff, in order to evade this, was continuously absent without leave for 53 days from May 25 of that year, without any prior report or submission of a leave-of-absence notice to the Defendant company, until his arrest by the investigating authorities; and that after his arrest, the Defendant company took a leave-of-absence measure on May 26 of that year. The court below further found that the Plaintiff was thereafter indicted while under arrest, and on August 28 of that year, was found guilty by the Masan District Court of violating the National Security Act and sentenced to one year and six months' imprisonment and one year and six months' suspension of qualification, with three years' suspension of execution, and appealed, but the appeal was dismissed, and the case is currently pending before the Supreme Court on further appeal. The court below found that the Defendant company had taken the disciplinary dismissal action against the Plaintiff through the disciplinary procedure described above, and determined that the Defendant company's dismissal of the Plaintiff was carried out in accordance with the above employment rules, which set the substantive standards for personnel action, and thus had justifiable grounds.
2. Even a full-time union officer maintains a basic labor relationship with the employer, and the application of the employment rules or company regulations is not entirely excluded; therefore, unless the collective agreement contains a special provision concerning full-time union officers or a special practice exists, such an officer is subject to the company regulations concerning attendance and departure.
However, according to the record, Article 12, Paragraph 1 of the Defendant company's collective agreement provides that "the company shall recognize the participation of union officers and union members in various meetings, educational events, and other matters related to the union when they wish to participate; provided, that the union shall consult with the company in advance regarding this" (Exhibit B No. 18), and on this basis, the Plaintiff and other full-time union officers, when going on business trips outside, had sent a cooperation letter to the company in advance before going on the trip (Exhibit B No. 21-1, 2; testimony of witness Kang Seong-jung at the first instance), and it can be seen that the Defendant company received daily reports on the attendance status of all employees through the daily attendance report of employees on duty (Exhibit B Nos. 7-1 through 34). Given these circumstances, if the Plaintiff was to be absent for an extended period for private business unrelated to labor union affairs, he was required to obtain the employer's permission, and if he was absent for an extended period without leave without such measure, this should be regarded as falling under "unauthorized absence," a ground for dismissal under Article 13, Item 5 of the rules on rewards and punishments.
Therefore, the fact that the Plaintiff, unrelated to labor union business, went into hiding to avoid the execution of the pre-issued arrest warrant and was absent for 53 days without any prior notice to the Defendant company or approval or permission obtained from the Defendant company, constitutes "a case where an employee has been continuously absent without leave for seven days or more" under Article 13, Item 5 of the rules on rewards and punishments, and thus the court below's determination on this point cannot be said to have erred in violating the rules of evidence or in misinterpreting the law.
3. Article 13, Item 11 of the above rules on rewards and punishments provides that receiving a sentence of a fine or heavier punishment constitutes a ground for dismissal. In light of the fact that this provision includes even a case of receiving a minor fine that would not impede the provision of labor to the Defendant company, and that there is no provision guaranteeing reemployment or reinstatement in the event of a final acquittal at a higher court, there is room to interpret that "a case of receiving a sentence of a fine or heavier punishment" here means a final and conclusive judgment (even under this interpretation, it goes without saying that if the substantive grounds of the criminal case fall under another ground for discipline, disciplinary action may be taken irrespective of the criminal judgment). However, since the Plaintiff was continuously absent without leave for seven days or more as described above, which constitutes a ground for disciplinary dismissal under Article 13, Item 5 of the rules on rewards and punishments, and the court below's determination that there was no ground for invalidity in the procedure by which the Defendant dismissed the Plaintiff for disciplinary reasons is also correct, and in light of the circumstances noted above, including the period and reason for the Plaintiff's unauthorized absence, this ground alone cannot be regarded as constituting an abuse of discretionary authority in the disciplinary dismissal of the Plaintiff. Therefore, whether it was proper for the Defendant to determine that the ground for dismissal under Article 13, Item 11 of the rules on rewards and punishments was met on the basis of a guilty judgment that had not yet become final does not affect the outcome of this case. This argument is also without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. It is so decided by the unanimous opinion of the Justices participating in this decision, as set forth in the Order.
Justice Choi Jong-young (Presiding Justice), Choi Jae-ho, Bae Man-un (Justice in charge), Kim Seok-su