[해고무효확인등][공1995.8.1.(997),2547]
(a) If absence without permission during a given period of time is separately provided for in the grounds for dismissal under the grounds for disciplinary action and the rules of employment, a bilateral relationship;
B. In the case of paragraph (a), whether the employer should undergo disciplinary proceedings when the dismissal disposition is made
A. The rules of employment stipulate separate dismissal from dismissal as one of the grounds for dismissal. On the other hand, the disciplinary rules which set the disciplinary grounds, disciplinary standards, disciplinary procedures, etc. concerning dismissal of disciplinary action, etc. stipulate "Unauthorized absence from office" as one of the grounds for disciplinary action (which is divided into two or more days and seven or more days). The two grounds for unauthorized absence from office are different to the extent that it damages the order of service, and it is obvious that the employer is a separate reason. Thus, the employer can make a dismissal under the rules of employment regardless of the former grounds.
B. If an action of dismissal and a disciplinary action are separately provided as stated in Paragraph (a), no procedure provision is provided as to the action of dismissal, but the same cause of dismissal is provided as that of the general disciplinary action, it cannot be said that the employer should undergo general disciplinary proceedings in making the action of dismissal, and it is not subject to the disciplinary criteria as stipulated in the disciplinary action regulations in making the action of dismissal.
Article 27(1) of the Labor Standards Act
[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)
Plaintiff 1 and two others
Dongnam Transport Automobile Co., Ltd., Counsel for the defendant-appellant
Busan High Court Decision 93Na6317 delivered on June 3, 1994
All appeals are dismissed.
The costs of appeal are assessed against the plaintiffs.
We examine the grounds of appeal.
According to relevant evidence and records, the judgment of the court below that the plaintiffs were absent from work without permission for more than seven days a month during the employment of the defendant company is acceptable, and there is no error in the deliberation or in violation of the rules of evidence.
Examining the relation provisions of the rules of employment and the rules of reward and disciplinary action (hereinafter referred to as the "laws") of the defendant company, the rules of employment provide for dismissal from office separately from dismissal, and the rules of employment provide for "Unauthorized absence from office" as one of the grounds for disciplinary action, the disciplinary standards, disciplinary procedures, etc. on the dismissal of disciplinary action, etc. at least seven days a month, shall be defined as "unauthorized absence from office" as one of the grounds for disciplinary action, and it is clear that the two grounds for unauthorized absence from office are different to the extent that it harms the order of service, and therefore, the employer may be dismissed from office in accordance with the rules of employment regardless of the rules of disciplinary action, regardless of the grounds for the former. The judgment below to this purport is proper and acceptable, and it is not acceptable as an independent opinion.
Moreover, as in the instant case, even though a separate provision exists as to a disposition of dismissal and a disciplinary action, no procedure provision exists as to a disposition of dismissal, unlike the general disciplinary action, and unless the same ground for dismissal is provided as the grounds for disciplinary action, it cannot be said that the employer should undergo general disciplinary proceedings in making an disposition of dismissal (see Supreme Court Decision 94Da42082, Mar. 24, 1995). Thus, it cannot be said that the disposition of this case was unlawful because it did not comply with the disciplinary action provision.
All arguments are without merit.
Therefore, all appeals are dismissed, and the 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 Ahn Yong-sik (Presiding Justice)