[해고무효확인등][집41(3)민,178;공1993.12.15.(958),3151]
(a) Validity of a disposition of dismissal where any defect in the procedures for review prescribed in the collective agreement is omitted;
(b) The collective agreement provides that a disciplinary committee shall take disciplinary action in the case of a disciplinary action, but it shall take effect of the regulations of the disciplinary committee which recognize an exception to disciplinary action without resolution
(c) If a person to be disciplined falls under any reason for ipso facto retirement of illegality referred to the disciplinary committee, a copy of compliance with the provisions;
A. According to a collective agreement, if a trade union or a union member’s objection to a decision on personnel management and disciplinary action is raised, the representative of the union and the union member concerned shall be notified in writing of the decision within seven days after a review is conducted in the presence of the union. If the company, immediately after the notice of dismissal, failed to review as a remedy or final procedure despite having received an objection from the trade union, such procedural defect is considerably contrary to the procedural justice, taking into account the function of the retrial procedure, the expectation of the person to be disciplined, and the strictness of the procedure, and thus, the dismissal disposition
B. Article 32 of the collective agreement provides that disciplinary action against members shall be in accordance with the disciplinary regulations set by the company, and Article 22(1) of the Official Commendation and Disciplinary Regulations provides that disciplinary action may be taken only at the expense of the representative director (or the head of a factory) without the resolution of the committee in cases where the matters falling under disciplinary action under the rules of employment are clear or criminal cases are prosecuted, but Article 34 of the collective agreement provides that the members subject to disciplinary action shall hold a disciplinary committee and give an opportunity to vindicate their opinions and does not provide exceptions thereto, Article 32 of the collective agreement shall be deemed to delegate the disciplinary action regulations only concerning matters not set forth in the collective agreement among the matters concerning disciplinary action, and Article 34 of the collective agreement provides that with respect to the holding of the disciplinary committee in disciplinary proceedings, Article 22(1) of the Act on Official Commendation
(c) Even if a person to be disciplined constitutes a reason for ipso facto retirement prescribed in the rules of employment, other than the reason for the dismissal of an illegality, the company should comply with the provisions of the collective agreement, such as the Review Regulations, unless the company has referred the person to the Disciplinary Committee
(b)Article 27(1)(b) of the Labor Standards Act; Article 97(1) of the same Act; Article 36(1) of the Trade Union Act;
B. Supreme Court Decision 92Da48697 delivered on April 27, 1993 (Gong1993Ha, 1558). Supreme Court Decision 92Da54210 delivered on October 26, 1993 (Gong193Ha, 3160)
[Defendant-Appellant] Plaintiff 1 and 2 others
Cymsung Machinery Industry Co., Ltd., Counsel for the plaintiff-appellant and one other
Busan High Court Decision 91Na15713 delivered on October 9, 1992
The appeal is dismissed.
The costs of appeal are assessed against the defendant.
The grounds of appeal are examined (the supplementary appellate brief is after the expiration of the period for submitting the appellate brief, to the extent of supplement in case of supplemental appellate brief).
1. As to the application for a retrial
According to the reasoning of the judgment below, the court below found that the plaintiff was absent from work without permission from December 1, 1990 to January 8, 191, and caused enormous property losses to the defendant company. The defendant company held a disciplinary committee on January 11, 1991, and notified the plaintiff to the office of the defendant company and the address of the plaintiff on the ground that the above trade union did not dismiss the plaintiff as of January 14, 1991, and that the defendant company did not raise an objection pursuant to Article 23 of the collective agreement on the ground that the above dismissal disposition was unreasonable on the same date, and that the defendant company did not take any action against the plaintiff's above objection, and that the above dismissal disposition against the plaintiff as the chairperson of the trade union did not constitute a legitimate ground for dismissal under Article 9 of the collective agreement, and that the defendant company did not have any error in the rules of employment as to the defendant company's rejection of the above dismissal order within 10 days after the date of the above rejection of the defendant company's dismissal order.
2. As to the misapprehension of legal principles as to procedural justice
Article 32 of the collective agreement provides that disciplinary action against a member shall be taken in accordance with the disciplinary provision prescribed by the company, and Article 22(1) of the Official Commendation and Disciplinary Rule provides that a disciplinary action may be taken only at the expense of the representative director (or the head of a factory) without a resolution of the committee in cases where the matters subject to disciplinary action under the rules of employment are clear or prosecuted for a criminal case. However, Article 34 of the collective agreement provides that the members subject to disciplinary action shall hold a disciplinary committee and provide an opportunity to vindicate their opinions and does not provide exceptions thereto. Article 32 of the collective agreement provides that Article 34 of the collective agreement shall be delegated only to disciplinary action regulations concerning matters not prescribed by the collective agreement among matters concerning disciplinary action, and Article 22(1) of the Regulations on Official Commendation and Disciplinary Committee, which excludes disciplinary action, shall be deemed null and void in violation of the provisions of the collective agreement. Accordingly, even if the grounds for Article 22(1) of the Regulations on Official Commendation and Disciplinary Committee are not in force, there is no reason to further examine the procedural justice.
In addition, there is no evidence to acknowledge that the plaintiff's disciplinary action is a reason for ipso facto retirement under Article 39 (4) of the Rules of Employment in addition to the plaintiff's grounds for the disciplinary action as well as the grounds for ipso facto retirement under the above rules of employment, such as family litigation, even if the defendant company referred the plaintiff to the disciplinary committee for the reason of the above misconduct, if the defendant company failed to comply with the rules of the collective agreement such as the rules of review, if the defendant company referred the plaintiff to the disciplinary committee for the reason of the above misconduct, the procedure is unlawful, and the defect of the disciplinary procedure is not cured because the plaintiff's illegality falls under the ground for ipso facto retirement. Thus, the dismissal of the disciplinary action in this case
Therefore, the judgment of the court below with the same conclusion is just, and there is no error in the misapprehension of legal principles as to the principle of equity and procedural justice. All arguments are without merit.
3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.
Justices Ansan-man (Presiding Justice)