[2] The case holding that "the period of leave of absence shall not exceed 45 days, and where a person to be reinstated is not submitted by the day before the expiration of the period of leave, the retirement disposition pursuant to the collective agreement shall be valid

[2] The case holding that the disposition of retirement has justifiable grounds on the grounds that "a bus transportation company shall not exceed 45 days, and if a bus transportation company fails to submit a reinstatement before the expiration of the period of the leave, it shall dispose of the worker who applied for extension of the leave for more than three times the maximum limit provided in the collective agreement, or more than the maximum limit provided in the collective agreement without submission of reinstatement, such provision shall be interpreted as a provision of the collective agreement in order to prevent the bus transportation company from finishing its business affairs due to the long-term temporary retirement; therefore, it shall not be deemed as a provision of invalidity due to a violation of Article 27 (1) of the Labor Standards Act, and it shall not be deemed as a provision of invalidity due to a violation of Article 27 (1) of the Labor Standards Act, and if the business of the company is permitted for more than three times the maximum limit provided in the collective

1. Facts established by the court below

(1) On September 2, 1994, the Plaintiff, who was employed as the Defendant’s bus driver, was hospitalized at the hospital due to a traffic accident while returning home on September 2, 1994. However, on October 22 of the same year, the Plaintiff submitted a temporary retirement period until November 15 of the same year. (2) Although Article 21 subparag. 2 of the Defendant’s collective agreement provides that the temporary retirement period may not exceed 45 days, the Plaintiff applied for a temporary retirement period for 74 days or longer, and thus, the Defendant intended to refuse the Plaintiff’s application for temporary retirement, but the Defendant received the Plaintiff’s application for temporary retirement from the labor union. (3) Article 21 subparag. 4 of the Defendant’s collective agreement provides that the Plaintiff shall be deemed to have no intention of reinstatement unless the Plaintiff was reinstated by the expiry date of the temporary retirement period, and that the Defendant did not request the Plaintiff to send the said temporary retirement period to the Plaintiff by no later than 30 days prior to the expiration date of the aforementioned temporary retirement period.

2. Regarding ground of appeal No. 2

In this paper, first, Article 21 subparagraph 1 of the collective agreement provides that if a worker is unable to continue to work for 30 days or more due to illness, suspension of a license, or other personal reasons, he/she shall submit a leave of absence. Article 21 subparagraph 6 of the collective agreement provides that a worker shall be paid once a year for 20 days or more, and Article 23 subparagraph 7 of the collective agreement stipulates that a worker shall be allowed to retire for 45 consecutive days under the collective agreement of the defendant company, and therefore, Article 23 subparagraph 6 of the collective agreement provides that a worker shall be allowed to retire for 45 days or more. Therefore, the reason for retirement provided in Article 23 subparagraph 6 of the collective agreement shall be interpreted as including where a worker fails to submit a reinstatement or re-grant a leave of absence without submitting a reinstatement before the expiration of the period of leave of absence, but the application cannot be accepted by the plaintiff, such as traffic accident, and thus, Article 23 subparagraph 26 subparagraph 4 of the collective agreement shall not be interpreted as invalid.

However, Article 21 subparagraph 2 of the collective agreement provides that the temporary retirement period shall not exceed 45 days, and Article 21 subparagraph 4 of the collective agreement does not stipulate any provision concerning the extension of the temporary retirement period, and rather, Article 21 subparagraph 4 of the collective agreement provides that the person to be reinstated shall be deemed to have no intention of reinstatement if the person to be reinstated is not submitted by the day before the expiration of the temporary retirement period, and at the same time Article 23 subparagraph 6 of the collective agreement provides that a person who is a bus transportation company shall retire if the person to be reinstated is not reinstated for more than 45 days in order to prevent the long-term temporary retirement expenses incurred in relation to the business due to the temporary retirement of a worker. Thus, it is reasonable to interpret that Article 23 subparagraph 7 of the collective agreement or Article 21 subparagraph 6 of the collective agreement provides that the above provision shall not affect the above interpretation, and it shall not be deemed that the above provision violates Article 23 subparagraph 6 of the collective agreement on the temporary retirement, and therefore, it shall not be justified.

However, in cases where a collective agreement provides that a reason for retirement is a reason for retirement, such as death, retirement age, and expiration of the term of labor contract, retirement disposition under the collective agreement constitutes dismissal under Article 27 of the Labor Standards Act which is subject to the restriction of the Labor Standards Act (see, e.g., Supreme Court Decision 92Da54210, Oct. 26, 1993). Thus, the defendant's retirement disposition does not constitute a justifiable reason under Article 27 (1) of the Labor Standards Act, on the sole basis of the fact that a reason for retirement under the collective agreement occurred formally, and the defendant's retirement disposition does not constitute a justifiable reason under Article 27 (1) of the Labor Standards Act. According to the reasoning of the judgment below, the court below is somewhat insufficient in determining that only satisfying the formal requirements under the collective agreement has a justifiable reason under Article 27 (1) of the Labor Standards Act and it is somewhat insufficient at the time of explaining the reason. However, in light of the fact that, if the plaintiff who is an operator hospitalized due to an accident, other than an occupational accident, permit temporary retirement, it impedes the defendant's.

3. We examine the first ground for appeal.

Despite the Plaintiff’s assertion that the contents of a collective agreement are invalid in violation of Article 27(1) of the Labor Standards Act, it is obvious that the lower court erred by misapprehending the reasoning of the lower judgment, but it cannot be viewed that the contents of a collective agreement cannot be deemed null and void as stated in the ground of appeal No. 2. Therefore, the lower court’s aforementioned illegality does not affect the conclusion of the judgment, and therefore there is no reason to discuss.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeong Jong-ho (Presiding Justice)