[Plaintiff, Appellant and Appellee]
[Defendant, Appellee and Appellant] Hanyang Educational Foundation (학교법인 한양학원), Attorney Baek Nak-min and one other, Litigation Representatives
[Judgment Below] Seoul High Court Decision 91Na1020, rendered June 4, 1991
[Order]
All appeals are dismissed.
Each party shall bear its own costs of appeal.
[Reasoning]
We examine the Plaintiff's grounds of appeal.
According to the reasoning of the judgment below, the lower court, based on the evidence cited, found the fact that the Defendant's transfer of the Plaintiff on September 9, 1989 from work in the Insurance Department, Claims Review Section, handling review of unpaid medical insurance claims, to work at the store under Management Department No. 3, was carried out for the purpose of escaping the personnel stagnation that had accumulated because, since the hospital's opening approximately 17 years earlier, no institutional transfer personnel actions had been taken with respect to administrative staff, and thereby increasing work motivation and management efficiency through the placement of labor in the right place at the right time, and facilitating the smooth operation of business through personnel exchange among departments. Based on this finding of fact, the lower court held to the effect that the above transfer disposition was made according to business necessity, and was not made as a retaliatory measure against the Plaintiff's labor union activities; and further, that even though Article 21, Paragraph 2 of the collective bargaining agreement provides that "personnel actions concerning union officers shall be decided upon prior consultation and agreement with the union," since the Defendant had not been notified by the Plaintiff or the labor union of the fact that the Plaintiff had been appointed as a union officer and thus did not know of this fact, the Defendant was not required to go through the procedure under the above provision in carrying out the transfer disposition against the Plaintiff; and that the above transfer disposition could not be regarded as exceeding the scope of the already agreed labor contract so as to constitute a modification of the existing labor contract requiring the employee's prior consent as a material change in working conditions, or as an unforeseeable disadvantageous change; and accordingly, the lower court held that the above transfer disposition had justifiable grounds. Upon examination of the record, the above findings and determination of the lower court are acceptable, and there is no error of misunderstanding the legal principles concerning Article 39 of the Trade Union Act (노동조합법) or Article 27 of the Labor Standards Act (근로기준법). This ground of appeal is without merit.
We examine the Defendant's grounds of appeal.
(1) A remedial order issued pursuant to the remedy procedures under Article 40 and subsequent provisions of the Trade Union Act (노동조합법) merely imposes upon the employer a public-law obligation to comply with the order, and does not directly create or alter the private-law legal relationship between the employee and the employer. Therefore, even if a decision of the Labor Relations Commission dismissing an application for remedy under the remedy procedures of Article 40 and subsequent provisions of the Trade Union Act has become final, the employee may separately file a civil action to secure his or her private-law status and obtain relief for his or her rights (see this Court's Decision 90Da9353, rendered July 12, 1991). In accordance with this legal principle, the lower court's determination that the Plaintiff's action in this case is lawful is correct, and there is no error of misunderstanding the legal principles as argued in the grounds of appeal. This ground of appeal is without merit.
(2) The judgment below held as follows with respect to the issues related to the provision in Article 21, Paragraph 2 of the collective bargaining agreement stating that "personnel actions concerning union officers and delegates shall be decided upon prior consultation and agreement with the union":
① The fact that the non-party, who is the chairperson of the labor union, briefly attended the disciplinary committee convened on October 23, 1989 to discipline the Plaintiff and met with the chairperson of the disciplinary committee was merely to protest that the holding of the disciplinary committee was improper in that it would nullify the agreement reached between labor and management to hold collective bargaining on October 30 of the same year regarding the Plaintiff's transfer disposition as an agenda item. Therefore, this meeting cannot be regarded as the Defendant having reached prior agreement with the labor union on the disciplinary action against the Plaintiff, nor can it be regarded as the labor union having abandoned its right to prior consultation and agreement regarding the disciplinary action against the Plaintiff in this case.
② Article 7 of the collective bargaining agreement provides that employees of the Accounting Department may not become union members, and although the Defendant reorganized the organizational structure of the affiliated hospital on October 1 of that year, designating Management Department No. 3, to which the Plaintiff had been transferred, as the Special Accounting Department, it can be found that Management Department No. 3 was a department in charge of store operations, that its duties remained unchanged after the reorganization with only the name being changed to the Special Accounting Department, that it was a department whose employees automatically became union members at the time the collective bargaining agreement was concluded, and that even after the reorganization, union dues continued to be collected from employees working at the store. In light of these findings, together with the nature of store operations and the purpose of excluding personnel officers and Accounting Department employees from the scope of union membership, the mere fact that Management Department No. 3 was renamed the Special Accounting Department through the organizational reorganization does not mean that an employee of Management Department No. 3 who had been a union member thereby lost union membership status.
③ It is clear that disciplinary action against an employee is a personnel matter, and whether a person is a union officer should be determined not as of the time the grounds for the personnel action arose, but as of the time the personnel action is taken. Since the Defendant was notified by the labor union, on October 7, before the disciplinary committee in this case was convened, of the fact that the Plaintiff had been appointed as the union's education officer, the Defendant was required to follow the procedure prescribed in Article 21, Paragraph 2 of the collective bargaining agreement with the union in taking the disciplinary action in this case.
Upon examination of the record, the above findings of fact and determinations of the lower court are all acceptable as correct, and there is no error of violation of the rules of evidence, misunderstanding of facts due to incomplete deliberation, or misunderstanding of legal principles as argued in the grounds of appeal. This ground of appeal is without merit.
(3) In the case of unjust dismissal, the reason an employee may claim from the employer payment of an amount equivalent to wages for the period after the date of dismissal is that the employee is unable to provide labor due to grounds attributable to the employer; therefore, this cannot be said to violate the principle of no work, no pay, the principle of good faith, or the principle of equity.
In this vein, the lower court's measure ordering the Defendant to pay the Plaintiff an amount equivalent to wages from the day following the disposition of dismissal in this case until reinstatement to Management Department No. 3 is correct, and there is no error of misunderstanding the legal principles as argued in the grounds of appeal.
Therefore, both the Plaintiff's and the Defendant's appeals are dismissed, and the costs of appeal are to be borne by each party respectively. This judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Park Woo-dong (Presiding Justice), Kim Sang-won, Yoon Young-cheol, Park Man-ho