[Plaintiff, Appellant] Asiana Airlines, Inc. (Attorneys Kim Hak-jun and 2 others, counsel for the plaintiff)
[Defendant, Appellee] Chairperson of the National Labor Relations Commission
[Intervenor for the Defendant, Appellee] Intervenor for the Defendant (Attorneys Kwon Du-seop and 2 others of Law Firm Yeoneun, counsel for the intervenor)
[Judgment Below] Seoul High Court Judgment 2017Nu41513, decided September 1, 2017
[Order]
The appeal is dismissed. The costs of the appeal, including those arising from the intervention, shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Method of determining whether fundamental rights have been infringed in a situation of conflict between fundamental rights
A. Fundamental rights under the Constitution are, in the first instance, defensive rights intended to protect the free sphere of individuals from infringement by public authority; however, on the other hand, they are a concretization of the objective order of values that constitutes a fundamental decision of the Constitution, and thus exert influence upon all areas of law, including private law. Accordingly, private legal relationships between private individuals must also be regulated in a manner consistent with the constitutional provisions on fundamental rights. However, except in exceptional cases where, by their nature, provisions on fundamental rights may be directly applied to private-law relationships, such provisions shape the content of, and serve as criteria for interpreting, the relevant legal norms or the general principles of private law set forth in Articles 2 and 103 of the Civil Code (민법), and thereby indirectly take effect in private-law relationships (see Supreme Court en banc Decision 2008Da38288, decided April 22, 2010).
B. Article 15 of the Constitution provides that "All citizens shall enjoy freedom of occupation," thereby guaranteeing the freedom of occupational choice. The freedom guaranteed by this provision includes the freedom of occupational activity, that is, the freedom to determine, in principle, the content and manner of one's activities while engaging in one's chosen occupation (see Supreme Court Decision 92Nu1728, decided March 8, 1994). Furthermore, viewed from the perspective of business activity, the purport of Article 15(1), Article 23(1), and Article 119(1) of the Constitution is that every enterprise has the freedom to freely operate the business or enterprise of its choice and to make decisions therefor, and this freedom is guaranteed by the Constitution (see Supreme Court Decision 2003Do687, decided November 13, 2003).
Meanwhile, Article 10 of the Constitution provides that "All citizens shall be assured of human dignity and worth as human beings and have the right to pursue happiness." The general freedom of action derived from this right to pursue happiness encompasses the freedom to do or not do any act, and its protected sphere includes matters relating to an individual's lifestyle and hobbies (see Constitutional Court en banc Decision 2011Hun-Ma659, decided April 24, 2014, among others). In this connection, Article 32(3) of the Constitution likewise provides that the standards for "working conditions" shall be determined by statute so as to guarantee "human dignity," and Article 33(1) recognizes the three labor rights for the improvement of workers' working conditions. These provisions necessarily presuppose that the freedom to make decisions concerning business management is not unlimited, but must be harmoniously adjusted in relation to the workers who are another subject of fundamental rights connected with such decision-making, in a direction that recognizes their dignity. The purport of Article 119(2) of the Constitution, which authorizes the State to regulate and coordinate the economy for the sake of balanced growth and stability of the national economy and economic democratization through harmony among economic agents, is in the same vein.
C. Thus, where the freedom of business, such as the freedom to make decisions concerning business management, conflicts with the general freedom of action, etc. enjoyed by workers over the setting of "working conditions," this conflict must be resolved, bearing in mind the constitutional connection between working conditions and the guarantee of human dignity, through a comprehensive weighing of interests that takes into account the circumstances of the specific case, together with an interpretation that seeks a practical harmony between the fundamental rights concerned. In light of the resulting limits on the exercise of each of the two fundamental rights, one must examine whether either fundamental right has been infringed, and, in doing so, interpret and apply the statutory provisions relevant to the determination of the ultimate validity of the working conditions (see the en banc Decision 2008Da38288, cited above, among others).
2. Whether the disciplinary action taken against the Intervenor for the Defendant was unlawful
A. According to the reasoning of the judgment below and the record, the following facts may be found.
(1) The Plaintiff is a company established on February 17, 1988, engaged in domestic and international air transportation business, etc., and the Intervenor for the Defendant (hereinafter "the Intervenor") joined the Plaintiff company on July 1, 1997, and has since worked as an aircraft captain performing flight duties.
(2) Article 5 of the Plaintiff's "Regulations on Employee Work Attire and Grooming," which constitute the Plaintiff's rules of employment, provides that "the grooming of executives and employees shall be neat and clean," and, in paragraph (1), item (ii), provides with respect to male employees: "The face shall at all times be kept clean-shaven, and beards shall not be grown; provided, however, that in the case of foreign nationals for whom mustaches are customary, this shall be permitted to the extent that it does not cause aversion in others" (hereinafter "the provision at issue").
(3) On the ground that "the Intervenor grew a beard in violation of the provision at issue and failed to comply with an instruction to shave," the Plaintiff, following a resolution of its personnel committee, imposed on the Intervenor, on July 31, 2015, a disciplinary sanction of a one-month reduction in pay (hereinafter "the disciplinary action at issue").
(4) On October 29, 2015, the Intervenor, asserting that the disciplinary action at issue was unjust, filed an application for relief with the Seoul Regional Labor Relations Commission; on January 14, 2016, the Seoul Regional Labor Relations Commission determined that the disciplinary action at issue was justified and dismissed the Intervenor's application for relief. The Intervenor, dissatisfied with this determination, filed a request for reexamination with the National Labor Relations Commission on January 25, 2016. On April 6, 2016, the National Labor Relations Commission determined that, while the grounds for the disciplinary action at issue were established, the severity of the sanction imposed was excessive, and accordingly granted the Intervenor's request for reexamination.
B. Examining the above facts and the following circumstances found in the record in light of the legal principles set forth above, the provision at issue, which the Plaintiff enacted on the basis of the constitutional freedom of business, etc., infringes upon the Intervenor's constitutional general freedom of action, and is therefore invalid pursuant to Article 96(1) of the Labor Standards Act (근로기준법) and Article 103 of the Civil Code (민법), among other provisions.
(1) The Plaintiff, as a private enterprise engaged in air transportation business, etc., may, within a reasonable scope and as necessary for such purposes as enhancing customer trust in and satisfaction with the airline, and instilling in employees a sense of responsibility and workplace discipline, place restrictions on the grooming and attire, etc. of its employees through its rules of employment. This is because the general freedom of action is likewise not unlimited. However, such rules of employment are subject to the limitation that they may not infringe upon workers' fundamental rights or violate higher-ranking laws and regulations, including the Constitution.
(2) Meanwhile, the provision at issue restricts the Intervenor's general freedom of action by comprehensively prohibiting the Plaintiff's employees, including the Intervenor, from growing beards, with the sole exception of mustaches for certain foreign employees. This restriction results in a conflict between the Plaintiff's freedom of business and the Intervenor's general freedom of action.
(3) The provision at issue, without any weighing of interests or harmonious coordination between the Plaintiff's freedom of business and the Intervenor's general freedom of action, comprehensively prohibits all of the Plaintiff's employees from growing beards at all, except for the exception concerning mustaches for certain foreign nationals. In this way, uniformly restricting the general freedom of action of employees beyond the scope of necessity and reasonableness relating to the freedom of business is problematic in terms of the weighing involved in the conflict of fundamental rights and the mutual harmonization of fundamental rights.
(4) Considering today's changes in social perceptions regarding the diversity of individual appearance, it cannot readily be concluded that employees of the Plaintiff growing beards would necessarily create a negative impression on, or have a negative effect upon, customers. On the contrary, if an employee grows a beard neatly and tidily, in keeping with his own appearance and the nature of his duties, to the extent that it does not cause aversion or displeasure in others, this may actually have a positive effect on customer trust and satisfaction. Nor can any reasonable basis or supporting material be found in the record of this case indicating that prohibiting employees from growing beards pursuant to the provision at issue has in fact heightened employees' sense of responsibility or customer trust. Accordingly, it cannot be concluded that a beard, in and of itself, invariably poses a risk to or constraint upon the freedom of business.
(5) Moreover, the Intervenor works as a captain responsible for the operation of the aircraft, and the scope of a captain's duties cannot necessarily be considered to include providing services through direct, face-to-face contact with passengers boarding the aircraft. The only alternative available to the Intervenor for preserving his own general freedom of action is to resign from the Plaintiff company; no other option exists. Nevertheless, compelling employees, in a uniform and comprehensive manner, not to grow beards cannot be considered reasonable, and this may be seen as excessively restricting the Intervenor's general freedom of action.
(6) The Plaintiff argues, in substance, that it is necessary, for the sake of flight safety, to comprehensively prohibit aircraft captains from growing beards; however, it is difficult to find any particular reasonable basis or grounds supporting this argument. On the contrary, the Plaintiff has partially permitted foreign employees, including aircraft captains, among its staff to grow beards, and other airlines likewise do not comprehensively prohibit flight crew members from growing beards. Furthermore, it does not appear impossible or difficult for the Plaintiff to amend its rules of employment so as to reasonably restrict grooming and attire, including the form of beards, in a specific and individualized manner that takes into account the particular characteristics and needs of individual job duties.
(7) Therefore, the provision at issue exceeds the limits of the Plaintiff's freedom of business and excessively restricts the Intervenor's general freedom of action, thereby infringing upon the general freedom of action of workers, including the Intervenor.
C. In the same vein, the court below determined that the provision at issue, by infringing upon the Intervenor's general freedom of action, violates Article 96(1) of the Labor Standards Act, among other provisions, and is thus invalid, and that the disciplinary action at issue, which was taken on the premise that the Intervenor had failed to comply with the provision at issue, was likewise unlawful. This determination by the court below is based on the legal principles set forth above, and it does not contain any error, as alleged in the grounds of appeal, in misapprehending the legal principles concerning the conflict of fundamental rights or the validity of rules of employment.
3. Conclusion
Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This Judgment is rendered as set forth in the Order by the unanimous opinion of the participating Justices.
Justice Park Jeong-hwa (Presiding Justice), Kwon Sun-il, Lee Ki-taek (Justice in charge)