[2] In a case where a second dismissal is made by supplementing the procedure and adding the grounds for the second dismissal in a state where the effect of the first dismissal is disputed, whether the second dismissal is void as a matter of course (negative)

[3] The validity of a personnel disposition without going through a consultation procedure with a trade union under a collective agreement

[4] Whether the second dismissal made while the first dismissal is pending is invalid in violation of the principle of res judicata (negative)

[2] While the effect of the primary dismissal is disputed, the primary dismissal shall not be deemed null and void as a matter of course on the basis of the fact that the primary dismissal is conducted in preparation for the absence of the validity of the primary dismissal, and that it is a secondary dismissal conducted in preparation for the absence of the validity of the primary dismissal.

[3] In a case where the right of personnel management is recognized to be a company, it is reasonable to view that the provisions of the collective agreement stipulating that "persons on dismissal, temporary retirement, or change of placement shall consult with the union," which provide that "in order to prevent a trade union from impeding the normal activities of the trade union by exercising the right of personnel management or disciplinary action against its members, the employer shall notify in advance the trade union of the details of personnel management or disciplinary action against its members and give the union an opportunity to present necessary opinion in order to ensure the fairness of personnel management or disciplinary action and consider the opinion of the presented trade union as reference material. Therefore, even if the consultation procedure is not followed, the validity

[4] The second dismissal is an invalid dismissal in violation of the principle of res judicata, the principle of good faith, the principle of good faith, and the principle of no speech, on the ground that it was in the process of disputing the validity of the second dismissal.

The court below held on November 21, 1990 that the defendant company held a personnel committee meeting to dismiss the plaintiff on the ground that the plaintiff was absent from work without permission for at least seven days, and that the defendant company decided that the above disciplinary dismissal was an unfair labor practice on February 26, 191 and ordered the plaintiff to return the plaintiff to his former former office on February 26, 191, and that the defendant company held a personnel committee meeting on March 18, 191 and decided to dismiss the plaintiff again on the ground that the plaintiff was dismissed from work without actual reinstatement, i.e., dismissal of the worker who was deprived of his status, and the plaintiff's assertion that the dismissal of the second dismissal of the defendant company was null and void as long as the defendant company took the above measures of reinstatement as the plaintiff was dismissed from his status as a person who was dismissed, and therefore, it cannot be viewed that the above dismissal of the plaintiff was null and void.

According to the records, although the defendant company returned the plaintiff to the National Labor Relations Commission in accordance with the above Regional Labor Relations Commission's order of reinstatement, it is known that the defendant company filed an application for reexamination to the National Labor Relations Commission. Thus, the order of remedy to the employer by the Labor Relations Commission as stipulated in Article 42 of the Trade Union Act shall be imposed upon the employer the obligation under the public law, and shall not directly create or modify the legal relationship between the labor and management (see Supreme Court Order 75Ma496 delivered on February 11, 1976, Supreme Court Decision 93Da33173 delivered on June 28, 1994). Thus, even if the defendant company applied for reexamination to the National Labor Relations Commission for reexamination to fulfill the obligation under the public law as to the above order of reinstatement, if the defendant company applied for reexamination to the National Labor Relations Commission without cancellation of the first dismissal, it shall be deemed that the second dismissal was made in preparation for the first dismissal without cancellation of the dismissal, and it shall not be deemed that the second dismissal was made in accordance with the order of temporary dismissal.

Therefore, the judgment of the court below that the second dismissal of the defendant company cannot be deemed as dismissal of the dismissed worker because the plaintiff exceeded the status of the dismissed worker by taking measures of reinstatement, is erroneous. However, the second dismissal of the defendant company cannot be deemed as naturally null and void merely because it supplements the procedure without cancelling the first dismissal and added the ground for dismissal under the circumstance where the effect of the first dismissal is disputed. Thus, the court below's above misunderstanding of legal principles does not affect the conclusion of the case, and there is no ground for the argument on the premise that it is different.

2. We examine the second ground for appeal.

The court below held that the disciplinary action of this case against the plaintiff cannot be deemed to be an unlawful disciplinary action abusing the right of disciplinary action, considering the following factors: the defendant company's remaining grounds for dismissal, excluding unauthorized absence, are sufficiently recognized by evidence; the defendant company and the plaintiff cannot be deemed to have reached an exemption agreement with respect to the grounds for dismissal; the plaintiff's industrial action in this case against the provisions of the Trade Union Act and the Trade Union Adjustment Act, such as the process, purpose and means of the industrial action, and the degree of damages suffered by the defendant company due to the industrial action in this case; and the plaintiff's behavior in this case is recognized as an unlawful industrial action. In light of the relevant evidence and the provisions of the relevant Acts and subordinate statutes, the above judgment of the court below is just, and there is no violation of the rules of evidence, mistake of facts, and misapprehension of legal principles with respect to dismissal, etc. as discussed in the judgment of the court below.

3. We examine the grounds of appeal No. 5.

As discussed above, it is reasonable to view that Article 20 of the collective agreement between the defendant company and the defendant company's trade union provides that "all the personnel rights of the union shall be recognized to exist to the company" and that "persons on dismissal, temporary retirement, and placement conversion shall consult with the union." However, in order to prevent any harm to normal activities of the trade union by exercising the employer's arbitrary personnel rights or disciplinary rights against union members, it is not only to the extent that the employer gives the union an opportunity to present opinions necessary to ensure fairness in personnel affairs or disciplinary measures and takes into account the union's opinion as reference material. Thus, even if the consultation procedure was not followed, the validity of the personnel disposition shall not be affected (see Supreme Court Decisions 91Da41477 delivered on June 9, 192; 92Da4575 delivered on July 13, 1993; 92Da4735 delivered on September 13, 1993; 200Da1370 delivered on September 13, 1994).

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)