[Plaintiff, Appellant] Namsung Electric Industry Co., Ltd., Litigation Counsel Attorney Seol Dong-hun
[Defendant, Appellee] Chairman of the National Labor Relations Commission
[Judgment Below]
Seoul High Court Decision 85Gu584, rendered October 14, 1985
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. As to the First Ground
(1) In modern enterprises, the reason an employer requires educational background when hiring an employee is to use it as material for assessing the employee's labor capacity, determining working conditions, managing labor affairs, and optimizing personnel placement, as well as material for examining the employee's personal character, such as their likelihood of remaining with the workplace and their adaptability to corporate order and corporate norms, with the purpose of establishing a relationship of trust between labor and management and promoting the maintenance and stability of corporate order. Therefore, even where an employee concealed or misrepresented their educational background when entering employment, such concealment or misrepresentation of educational background may not be used as grounds for disciplinary dismissal of the employee unless it is found that such concealment or misrepresentation would affect the employer's relationship of trust with the employee or the maintenance of corporate order, such that, had the employer known of the misrepresentation of educational background in advance, the employer would not have entered into the employment contract, or at least would not have entered into the contract on the same terms. Where the rules of employment provide that misrepresentation of educational background at the time of entering employment shall constitute grounds for disciplinary dismissal, the content of such provision must likewise be interpreted in the manner set forth above (see Supreme Court Decision 83Daka2202, rendered April 9, 1985).
(2) According to the reasoning of the judgment below, the court below found the following facts: the Plaintiff company requires, as a qualification for hiring all employees, graduation from middle school or an equivalent or higher educational background; its rules of employment provide that any person who was hired through fraud, false personal history, or other improper means shall be subject to disciplinary dismissal; and the Plaintiff company likewise required such educational background in its employee recruitment advertisements. The court below found that although Nonparty, despite having only the educational background of having dropped out in the fifth grade of elementary school, misrepresented his educational background as having dropped out in the second year of high school and thereby entered employment with the Plaintiff company on June 8, 1982, when the evidence presented is considered comprehensively, it is recognized that: since entering the Plaintiff company, Nonparty had mainly engaged in soldering work, such that his educational background had little bearing on his work capability; the Plaintiff company itself did not regard the educational background of production workers as particularly important, and at the time of hiring had only required submission of a resume, photograph, and copy of resident registration, without requiring a graduation certificate; Nonparty had faithfully performed his duties for two years and nine months from the time of his employment until his dismissal, without any deficiency in ability due to insufficient education or any other defect; moreover, Nonparty had, prior to entering employment with the Plaintiff company, graduated from Haegwang Middle School, which, although not a regular school duly authorized for establishment under the Private School Act (사립학교법), nonetheless taught a middle-school curriculum; and, further, Nonparty had, shortly after entering employment with the Plaintiff company, joined the Plaintiff company's labor union, and was elected as a delegate for three consecutive years and as a member of the union's steering committee for two consecutive years; at the delegates' meeting held on February 5, 1985, he made remarks opposing the Plaintiff company regarding improvements to the operation of the village credit union; on February 25 of the same year he was elected as head of the union's education and propaganda department; and at the union officers' unity rally on March 1 of the same year, he stated that he would conduct education for officers and all union members on the issue of wage increases, thereby engaging in active union activities. In light of these established facts, the court below held that it was not recognized that, had the Plaintiff company known of the aforementioned facts in advance, it would not have entered into the employment contract with Nonparty, on the ground that Nonparty's misrepresentation of his educational background affected the maintenance of the Plaintiff company's management order or the relationship of trust between labor and management; on the other hand, the court below held that the Plaintiff company's disciplinary dismissal of Nonparty on March 2, 1985, on the ground of the aforementioned misrepresentation of educational background, appeared to have been carried out as a means of retaliatory sanction against Nonparty, who was in the midst of actively pursuing union activities, and was therefore unlawful and improper; accordingly, the court below held that the retrial ruling in this case, rendered by the National Labor Relations Commission on the same view and providing relief to Nonparty, was justified. Upon examination of the record, the above determination by the court below is justified, and no violation of the rules of evidence resulting in a mistake of fact, or any error in the misapplication of law, as argued by the Plaintiff, can be found therein. This ground of appeal is without merit.
2. As to the Second Ground
Upon examining Exhibit A No. 2 submitted by the Plaintiff company in light of the record, it is recognized that the retrial ruling of the National Labor Relations Commission in this case was lawfully rendered by a public interest members' meeting composed of three public interest members, and no evidence to the contrary can be found in the record; therefore, the argument criticizing this point is without merit. Furthermore, there is no basis in statute or regulation requiring that, where an employee whose rights have been infringed by an employer's unfair labor practice files an application for relief with the Labor Relations Commission pursuant to Article 40 of the Trade Union Act (노동조합법), the name of the labor union to which the employee belongs must be indicated before the employee's name; therefore, the argument that Nonparty's application for retrial to the National Labor Relations Commission, which did not indicate the labor union to which he belonged, was unlawful, taking the opposite position, is likewise without merit.
3. Accordingly, the appeal is dismissed, and the costs of the appeal shall be borne by the losing party. The Justices participating in this case are unanimous in their opinion, and it is so ordered as set forth in the Order above.
Supreme Court Justice Yoon Kwan (Presiding Justice), Oh Seong-hwan, Lee Jun-seung