[Plaintiff, Appellant] Hyundai Heavy Industries Co., Ltd. Labor Union (Attorneys Yoon Jong-hyun and 3 others, Counsel for the Plaintiff)
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Intervenor for the Defendant] Hyundai Heavy Industries Co., Ltd. (Attorney Lee Bong-gu, Counsel)
[Judgment Below] Seoul High Court Decision 91Gu10970 dated March 26, 1992
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning] As to the grounds of appeal by the Plaintiff's litigation counsel
1. According to Article 8 of the Rules of Employment (취업규칙) and Article 22 of the Collective Agreement (단체협약) of the Intervenor company, the grounds for leave of absence for employees of the Intervenor company are limited to five cases: illness unrelated to work, physical or mental disability, indictment while under detention, conscription pursuant to statute, and other circumstances on the employee's side that make it actually impossible or very difficult for the employee to provide labor for a considerable period of time. Furthermore, among the four grounds for retirement set forth in Article 14, Items 5 through 8 of the Rules of Employment, applicable when an employee on leave of absence for such reasons fails to return to work and is instead treated as having retired, all grounds other than that set forth in Item 7 — namely, "where, in the case of a leave of absence due to indictment while under detention, a guilty verdict is rendered" — pertain to cases where, even though the prescribed period of leave has expired or the ground for leave has ceased to exist such that there is no impediment to the employee's return to work, the employee fails to submit an application for reinstatement, thereby indicating an absence of any intention to return to work, or to cases where, even after the expiration of the leave period, the ground for the leave has not ceased to exist, such that actual provision of labor remains difficult or impossible. In light of the content of these grounds for leave of absence and the content of the other grounds for retirement applicable to employees on leave, it is reasonable to construe the ground for retirement prescribed for leave due to indictment — "where, in the case of a leave of absence due to indictment while under detention, a guilty verdict is rendered" — as meaning that the employee who has been placed on leave due to indictment while under detention has, by the time of the pronouncement of the first-instance judgment (at which point the period of leave prescribed under Article 9, Paragraph 2 of the Rules of Employment and Article 23, Paragraph 2 of the Collective Agreement expires), received a guilty verdict — that is, a sentence of actual imprisonment — the content of which fails to resolve the original substantive ground for the leave, namely, the physical detention that renders actual provision of labor impossible.
Moreover, construing the matter such that an employee who has been placed on leave due to indictment while under detention is treated as having retired where he or she receives a guilty first-instance judgment (a sentence of actual imprisonment) as described above does not mean that the criminal facts that were the subject of the guilty judgment are deemed to be conclusively established by the pronouncement of that judgment, and that the disadvantageous disposition of retirement is imposed on the basis of those criminal facts. Rather, it means that the disposition of retirement is imposed based on the fact itself that the employee has become unable to provide labor — the fundamental obligation under the labor contract — due to circumstances on the employee's side, namely, prolonged absence resulting from prolonged detention, both by the time of the pronouncement of the first-instance judgment when the leave period expires and thereafter. Therefore, Article 14, Item 7 of the above Rules of Employment does not violate the constitutional principle of presumption of innocence, under which a criminal defendant is presumed innocent until a guilty verdict becomes final. Meanwhile, since the provision of the Rules of Employment at issue in this case provides that an employee who is placed on leave due to indictment while under detention and who receives a guilty verdict shall be treated as having retired, it appears, as the argument points out, as though the retirement disposition based thereon may be imposed arbitrarily merely upon satisfaction of the requirements under the provision, and there is indeed room for arbitrary abuse. Accordingly, where the employer terminates the labor contract relationship with an employee by unilateral declaration of intent pursuant to the above provision, in order for such termination to be recognized as legitimate, there must ultimately exist "justifiable cause" as referred to in Article 27, Paragraph 1 of the Labor Standards Act (근로기준법), and the existence of such justifiable cause must be reasonably determined by comprehensively considering all relevant circumstances, including the possibility of early release at the time of expiration of the leave period, the impact of the detention on the workplace, and the nature of the relevant criminal case. Viewed in this light, the provision of the Rules of Employment concerning the employer's personnel authority to impose a retirement disposition on an employee already inherently contains, notwithstanding the form of the provision as described above, an intrinsic limitation to the effect that it must not be abused from the outset. Therefore, it cannot be said that the provision of the Rules of Employment violates Article 27, Paragraph 1 of the Labor Standards Act merely because of its formal wording.
According to the reasoning of the judgment below, the court below held that, since it is difficult to view Article 14, Item 7 of the Rules of Employment as violating the constitutional principle of presumption of innocence or Article 27, Paragraph 1 of the Labor Standards Act, the retirement disposition against Nonparty 1 taken pursuant to the said provision of the Rules of Employment was also legitimate. This reasoning appears to suggest that the legitimacy of a specific retirement disposition taken pursuant to the said provision of the Rules of Employment may be recognized solely on the ground that the formal requirements under the Rules of Employment were satisfied, without comprehensively considering the various circumstances discussed above that should be taken into account in determining such legitimacy. Although the reasoning set forth by the court below is thus insufficient, the record shows that Nonparty 1, as found by the court below, had a prior record of having been sentenced on June 5, 1989 by the Ulsan Branch of the Busan District Court to one year and six months' imprisonment, suspended for two years, for obstruction of business and other offenses. Nonetheless, Nonparty 1 was again indicted while under detention for similar criminal conduct — namely, obstructing the business of the Intervenor company by, among other things, forcibly leading a collective early departure from work together with other union members — and was placed on leave of absence, during which he was sentenced on June 18, 1990 by the same court, as the court of first instance, to one year's actual imprisonment. It is also found that, at the time of and immediately after the pronouncement of that first-instance judgment, the above suspension period had not yet expired, such that the possibility of Nonparty 1's early release through bail, cancellation of detention, or the like was extremely slim. In light of these circumstances, it cannot but be said that the Intervenor company's retirement disposition, taken on the ground that a guilty verdict of the above content had been rendered, was legitimate, and it cannot be said that this constituted an arbitrary abuse of the personnel authority under Article 14, Item 7 of the Rules of Employment. Accordingly, this has no effect on the conclusion of the judgment below that the Intervenor company's retirement disposition against Nonparty 1 was legitimate. There is no error of misapprehension of the law in the judgment below as argued.
Moreover, since neither the Rules of Employment nor the Collective Agreement provides that a retirement disposition under Article 14, Item 7 of the Rules of Employment constitutes one form of disciplinary action, it is not necessary, in imposing such a retirement disposition, to follow disciplinary procedures such as affording the employee concerned an opportunity to explain (see this Court's Decision 91Nu10480 dated May 8, 1992). The holding of the court below to the same effect is therefore justified. This ground of appeal is without merit.
2. According to the record, it is found that the Intervenor company, with respect to its employee Nonparty 2, who was indicted while under detention on charges of causing a traffic accident and fleeing the scene and who was sentenced on April 13, 1990 to one year's actual imprisonment in the first instance and to eight months' actual imprisonment in the second instance on July 19, 1990, did not process his retirement pursuant to Article 14, Item 7 of the Rules of Employment, but instead reinstated him immediately after he completed his full sentence while on leave and was released. Accordingly, the court below's statement, in rejecting the Plaintiff's allegation regarding unfair labor practice, that the Intervenor company had, without exception, applied Article 14, Item 7 of the Rules of Employment to process the retirement of employees who were indicted while under detention and sentenced to actual imprisonment in the first instance, cannot be said to be correct, as the argument points out.
However, even though Nonparty 2 was sentenced to actual imprisonment as described above, the content of the criminal facts was a traffic accident, which did not cause any direct harm to the Intervenor company, and there was some expectation of a reduced sentence on appeal following the first-instance judgment. It thus appears that the Intervenor company withheld processing his retirement for these reasons, which is recognized as having been, in its own right, a reasonably justifiable measure. Therefore, it cannot be concluded, based on this point alone, that Nonparty 1 alone was subjected to an unfair and inequitable retirement disposition by the Intervenor company in connection with his labor union activities. Accordingly, the determination of the court below that the retirement disposition against Nonparty 1 did not constitute an unfair labor practice committed with anti-union intent is justified, and there is no error of misapprehension of the law regarding unfair labor practices as argued by the Plaintiff. This ground of appeal is without merit.
For the foregoing reasons, 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 Yoon Kwan (Presiding Justice), Choi Jae-ho, Kim Ju-han, Kim Yong-jun