1. Case history and key issue

A. Case history

(1) From December 10, 2013, the Plaintiff served as a daily engineer on the bus route of the Intervenor joining the Defendant (hereinafter “ Intervenor”) (name 1 omitted).

(2) On April 12, 2018, the Intervenor (name 2 omitted) operated the bus route as a closed-end system. On April 12, 2018, the Intervenor recruited a driver who will work on the bus route from inside and outside of the inner area, and included the “second-day system, physically healthy persons (with no return from middle, without permission)” as working conditions.

(3) On April 28, 2018, the Intervenor issued an order to the Plaintiff (name 2 omitted) to work on the bus route. On May 29, 2018, the Plaintiff: (a) operated a bus on one occasion on May 29, 2018; and (b) issued an order to retire from the bus route on the part of the intervenors (name 2 omitted); (c) the Plaintiff submitted a mid-term application for return from May 30, 2018 to May 31, 2018; and (d) the Plaintiff was absent from office for two days from May 30, 2018 to May 31, 2018; and (e) the Intervenor did not work on May 31, 2018 to the Plaintiff on June 9, 2018.

(4) The Plaintiff asserted that the instant transfer is unfair, and filed an application for remedy with the Labor Relations Commission. The Regional Labor Relations Commission dismissed the Plaintiff’s application for remedy, and the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination. The Plaintiff filed the instant lawsuit.

B. Issues

The key issue is whether the transfer of this case constitutes a disciplinary action which takes place in a collective agreement, etc. with respect to the validity of the transfer of this case.

2. Whether the transfer of this case constitutes a disciplinary action involving the transfer of this case

A. In general, disciplinary action in a labor relationship refers to a disciplinary action aimed at maintaining corporate order against a worker’s past misconduct (see, e.g., Supreme Court Decision 95Nu15926, Oct. 29, 196). Even though an employer is obliged to provide a person subject to disciplinary action with an opportunity to vindicate the person subject to disciplinary action in violation of such disciplinary procedure, the exercise of the right to disciplinary action should be deemed null and void against procedural justice regardless of whether the grounds for disciplinary action are recognized (see, e.g., Supreme Court Decision 90Da8077, Jul. 9, 191). Therefore, if an employer provides that a disciplinary action against a worker subject to disciplinary action as a sanction against a past misconduct is a kind of disciplinary action that requires an employer to take disciplinary action, such unfavorable action, in principle, is valid (see Supreme Court Decision 2012Du10666, Aug. 27, 2015).

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) With respect to disciplinary action, the rules of employment of the Intervenor are as follows.

Disciplinary action shall be classified into a warning, reprimand, salary reduction, suspension of service on board, and dismissal of disciplinary action (Article 42). All disciplinary action shall provide an opportunity to vindicate, and any disciplinary action not attributable thereto shall be deemed null and void (Article 43). A disciplinary action of salary reduction shall be taken for a person who is at least 20 minutes of absence without permission (Article 44 subparagraph 3). A disciplinary action of salary reduction shall be taken for a person who is at least 20 minutes of absence without permission (Article 44).

(2) With respect to a disciplinary action, the collective agreement effective against the Plaintiff is stipulated as follows.

The disciplinary action shall be classified into a warning, reprimand, transfer or reduction of pay, suspension of service on board, disciplinary dismissal, on the basis of fairness (Article 66 subparagraph 1). All disciplinary actions shall provide the relevant members with an opportunity to vindicate, and non-compliance with the disciplinary action (Article 67 subparagraph 2).

(3) The Intervenor issued the instant transfer order on the ground that there was no long time after the Plaintiff’s early retirement or absence. In fact, the Intervenor asserted that the instant transfer was issued in consideration of not only the necessity of the company’s management, but also the “one time of absence from office without permission from the Plaintiff and two days of absence from office without permission from the Plaintiff, and the equity with other workers who work very heat” during the deliberation process of the Labor Relations Commission.

A trade union to which the Plaintiff belongs presents an objection to the transfer of this case to the Intervenor, and presented the Intervenor’s opinion that “The transfer of this case was made on the ground of this, in spite of the circumstances where the Intervenor had sufficient reasons to submit an application for return to the Plaintiff and the report of absence from work.”

(4) Considering the content and form of service following the instant transfer, the Plaintiff’s health status, etc., the instant transfer constitutes a disadvantageous disposition against the Plaintiff. However, the Intervenor unilaterally notified the instant transfer without seeking prior opinion to the Plaintiff.

C. We examine these facts in light of the legal principles as seen earlier.

The collective agreement and rules of employment of the Intervenor’s workplace applicable to the Plaintiff set the same as one of the disciplinary grounds for which the “two days of absence without prison labor” may be reduced, and the type of disciplinary action may be selected instead of salary reduction. The Intervenor must provide the Plaintiff with the opportunity to vindicate prior to such disciplinary action. The Intervenor’s refusal and absence from office constitutes “two consecutive days of absence without prison labor,” etc. As such, deeming that the Plaintiff’s refusal and absence from office constituted “two consecutive days of absence without prison labor,” the Plaintiff’s order to transfer the instant case corresponding to the change of occupation during

Nevertheless, the Intervenor did not provide the Plaintiff with an opportunity to vindicate during the instant transfer process and did not undergo disciplinary proceedings required by collective agreements and the rules of employment. Therefore, the instant transfer is null and void.

D. The lower court’s judgment to the same purport is justifiable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the distinction between disciplinary action and personnel order, without exhaust all necessary deliberations

3. Whether the transfer of this case is valid as a personnel order

The gist of the argument in the grounds of appeal is that the intervenor's occupational necessity for the transfer of this case was not significant, and the disadvantage of the plaintiff's living due to the transfer of this case was not significant, and that the transfer of this case is legitimate because the intervenor had gone through the procedure required by the principle of good faith by consulting with the labor union to which the plaintiff belongs before the transfer

However, as seen above, so long as the transfer of this case constitutes a disciplinary action requiring disciplinary proceedings, this part of the ground of appeal on the premise that the transfer of this case is not a disciplinary action, but a personnel order issued based on the Intervenor’s inherent authority, is without merit, without further review.

4. Conclusion

The appeal by the Defendant and the Intervenor is dismissed in entirety as it is without merit, 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.

Justices Lee Dong-won (Presiding Justice)