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(영문) 대법원 2015. 10. 29. 선고 2014다46969 판결

[근로자지위확인등][미간행]

Main Issues

The scope of discretion on the transfer or transfer disposition for workers and the criteria for determining whether the transfer disposition, etc. falls under the scope of legitimate personnel rights.

[Reference Provisions]

Article 23(1) of the Labor Standards Act, Article 2 of the Civil Act

Reference Cases

Supreme Court Decision 2007Da54498, 54504 Decided March 26, 2009 (Gong2009Sang, 760)

Plaintiff-Appellant

See Attached List of Plaintiffs (Attorney Jeon Young-young et al., Counsel for the plaintiff-appellant)

Defendant-Appellee

KT Co., Ltd. and two others (LLC, Kim & Lee LLC, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Judgment of the lower court

Seoul High Court Decision 2013Na31528 decided June 11, 2014

Text

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

Reasons

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the primary claim

The court below rejected the plaintiffs' assertion that the above plaintiffs' voluntary retirement or voluntary retirement should be revoked on the ground that it is difficult to recognize that the plaintiffs' voluntary retirement or voluntary retirement should be revoked on the ground that it did not constitute an important part of the plaintiffs' voluntary retirement, since the plaintiffs' voluntary retirement or voluntary retirement could not be revoked on the ground that it did not constitute an important part of the plaintiffs' voluntary retirement, since the plaintiffs' voluntary retirement or voluntary retirement could not be revoked on the ground that the plaintiffs' voluntary retirement or voluntary retirement could not be revoked on the ground that the plaintiffs' voluntary retirement could not be revoked on the ground that the plaintiffs' voluntary retirement or voluntary retirement could not be revoked on the ground that the plaintiffs' voluntary retirement or voluntary retirement could not be revoked on the ground that the plaintiffs' voluntary retirement by the public offering of this case would not be entrusted with the plaintiffs' voluntary retirement, since the plaintiffs' voluntary retirement could not be recovered.

In light of the relevant legal principles and records, the judgment of the court below is just, and there are no errors of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles on the cancellation of declaration of intent by fraud or mistake,

2. As to the grounds of appeal Nos. 1 and 3 as to the conjunctive claim

(1) According to the reasoning of the judgment below and the records, (1) revised regulations on remuneration and provision of remuneration for Defendant C&M companies (hereinafter “C-based remuneration regulations”) were enacted on January 1, 207; and (2) the remuneration for employees converted on January 1, 207 (hereinafter “the general remuneration regulations for call corporations”) was paid for less than 7 years to the immediately preceding companies (as of November 30, 2006) for 70% of their salary terms and conditions for employment; and (3) the subsequent annual salary system was established on the basis of the proviso (hereinafter “the instant proviso provisions”), which provides that the former remuneration regulations for employees of Defendant C-based companies shall be applied for less than 7 years; and (4) the remaining terms and conditions of employment for employees of Defendant C-based public-service companies shall be determined on the basis of the annual salary for not less than 20% of their respective terms and conditions for employment; and (2) the remaining terms and conditions of employment for Defendant C-based retirement for less than 7 years.

B. The proviso of this case aims to stipulate that the provision of this case does not apply the general remuneration provision of call corporation to employees who are employed by the call corporation after the voluntary retirement in Defendant K, and the provision of this case does not apply to employees who were transferred from January 1, 2007 to the time of transfer, but also employees who were transferred to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the time of transfer to the above time of transfer to the above time of transfer to the following time under the proviso of this case. In full view of the above, the provision of this case applies to the employees who were transferred to the defendant call corporation on January 1, 207 or the actual progress of the provision of this case.

However, the proviso of this case does not provide a separate provision for the employees who were transferred to a call corporation after the three-year period of guarantee. On the other hand, since the three-year period of guarantee is excluded from the application of the general remuneration provision of call corporation, the general remuneration provision of call corporation is not applicable as a matter of course to the plaintiffs from the time when the three-year period of guarantee expires. If a call corporation (or a call corporation succeeding to a call corporation) provides a separate remuneration provision to the plaintiffs, it is only applicable to the plaintiffs to the extent that it does not go against the mandatory law such as the Labor Standards Act.

C. The allegation in the grounds of appeal on this part is based on the premise that the current remuneration regulations are applied to the plaintiffs, as a matter of course, if the current remuneration regulations are null and void because they are disadvantageous changes due to collective decision-making by the employees of the previous call corporation without any separate consent, and accordingly, the general remuneration regulations are applied to the plaintiffs. Accordingly, even after the expiration of the three-year guarantee period, the plaintiffs should be guaranteed the class of call corporations corresponding to the previous class, and the benefits should be paid according to the above class and duties, and even if the current remuneration regulations are null and void without any separate consent by the collective decision-making method of the employees of call corporations, the above proviso provisions of this case are only applied to the plaintiffs, and the general remuneration regulations of call corporations are not applied to the plaintiffs, and this part of the grounds of appeal on this part cannot be accepted without any need to further examine.

3. On the fourth ground for appeal as to the conjunctive claim

A. A disposition of change of occupation or transfer to a worker may be disadvantageously imposed on the worker in that it brings about changes to the type, content, place, etc. of work to be provided by the worker. However, in principle, since it belongs to the authority of the employer who is the personnel management authority, considerable discretion shall be recognized within the necessary scope of business. Barring special circumstances, such as in violation of Article 23(1) of the Labor Standards Act or abuse of rights to prevent the worker from being dismissed, temporarily laid off, suspended from office, reduced wages, or other disciplinary action without justifiable grounds, it shall not be deemed null and void. Whether the change of occupation, etc. belongs to the legitimate scope of personnel rights shall be determined by comparing and comparing the necessity of the work such as the change of occupation and the disadvantage of the worker in his/her daily life due to the change of occupation, and whether such change of occupation, such as consultation with the labor union to which the worker belongs, has undergone the procedure required under the good faith principle (see, e.g., Supreme Court Decisions 2007Da5498, 5404, Mar. 26, 2009>

B. According to the reasoning of the judgment below, the court below determined as follows: ① (i) the service of the VOC was completed in accordance with the entrustment contract with the Defendant KK; (ii) there was a need to adjust, rearrange, and transfer duties to the Plaintiffs, who had been engaged in the business of VOC and flass 1.5 line work; (iii) the instant personnel order was made the same to the Plaintiffs as well as the employees in charge of the Defendant KV, KTS’s work; and (iv) the period of commuting to and from work cannot be deemed to exceed the number of the Plaintiffs; and (v) the Plaintiffs could not be deemed to have been forced to take a prior consultation procedure with the relevant employees, such as holding a briefing session prior to the personnel order; and (v) the Plaintiffs could not be deemed to have been forced to transfer to and be forced to transfer to work or manage the above employees’ wages for three years after entering the public recruitment corporation, even though there was no particular difference with other employees of the said Defendants; and (v) the Plaintiffs could not be deemed to have been forced to transfer and manage the above employees’ work.

In light of the above legal principles and records, the judgment of the court below is just, and contrary to the allegations in the grounds of appeal, there is no error of law by misapprehending the legal principles as to discretion in the transfer disposition

4. Conclusion

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.

[Attachment] List of Plaintiffs: Omitted

Justices Lee Ki-taik (Presiding Justice)