[2] Requirements for an employer’s unfavorable disposition against a worker to be subject to criminal punishment under Article 90 and Article 81 subparag. 1 of the former Trade Union and Labor Relations Adjustment Act as an unfair labor practice

[2] Where an employer is deemed to have made a disadvantageous disposition against a worker on the ground of his/her legitimate trade union activity, unlike the grounds for disadvantageous disposition such as dismissal, in practice, it shall be deemed as an unfair labor practice under Article 81 subparag. 1 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158 of Dec. 30, 2006). However, in cases where it is deemed that it was unreasonable for the employer to determine that there was a justifiable reason for the employer to take the disadvantageous disposition in light of the actual existence of the ground for the disadvantageous disposition at the time of the disadvantageous disposition and the circumstances at the time, it is difficult to readily conclude that the disadvantageous disposition constitutes an unfair labor practice subject to criminal punishment under Article 90 and subparag. 1 of the same Act

1. As to the grounds of appeal on each transfer and dismissal

In cases where it is deemed unreasonable for an employer to judge that there exists a reasonable ground to impose a disadvantage on workers and that there was a reasonable ground to judge that the disadvantage disposition is reasonable in light of the circumstances at the time, even if the disadvantage disposition is deemed to be null and void due to the absence of justifiable grounds in judicial proceedings, it cannot immediately be subject to criminal punishment under Articles 10 and 30(1) of the former Labor Standards Act (amended by Act No. 8293, Jan. 26, 2007). Here, the above disadvantage disposition is subject to criminal punishment only in cases where it is deemed that it abused or deviates from its authority in its content and it is deemed that it is reasonable under social norms (see, e.g., Supreme Court Decisions 93Do3128, Jun. 14, 1994; 2007Do6861, Jan. 24, 2008).

In addition, in case where the employer’s disadvantage disposition, such as dismissal, etc., is acknowledged to have been made on the ground of the worker’s legitimate trade union activity, unlike the reasons that the employer puts disadvantage to the worker on the surface, it shall be deemed to be an unfair labor practice under Article 81 subparag. 1 of the former Trade Union and Labor Relations Adjustment Act (amended by Act No. 8158 of Dec. 30, 2006). However, in case where it is deemed that the employer was not unreasonable to determine that the employer had justifiable reasons for the disadvantage disposition in light of the actual existence of the reason at the time of the disadvantage disposition and the circumstances at the time, it is difficult to readily conclude that the disadvantage disposition constitutes an unfair labor practice subject to criminal punishment under Articles 90 and 81 subparag.

The court below found the defendant not guilty on the ground that the dismissal of the defendant against the non-indicted 1 and the dismissal of the non-indicted 2, 3, 4, and 5 against the non-indicted 2, 4 on November 1, 2003 and the dismissal of the non-indicted 4 and non-indicted 5 on the ground that they engaged in trade union activities without justifiable grounds. The court below found the defendant not guilty on the ground that there is no proof of a crime or lack of proof of a crime. As recognized by the court below, it seems that it was not reasonable to have judged that there was a justifiable reason for the defendant to take such unfavorable measures at the time of the above transfer and dismissal, and that there was no reasonable reason for the defendant to take such unfavorable measures in light of all the circumstances at the time of the above transfer and dismissal, the court below's decision that the above act cannot be subject to criminal punishment for violation of the former Labor Standards Act and the former Trade Union and Labor Relations Adjustment Act is acceptable in light of

2. As to the grounds of appeal on the control and intervention of the organization and operation of a trade union

The court below found the defendant not guilty on the grounds that there is no proof of a crime as to the facts charged that the defendant posted a letter on the company homepage on October 23, 2003, verbally abused a trade union or union members on October 30, 203, and submitted it to the trade union upon withdrawal from the trade union from November 3, 2003 to November 8, 2003. The court below found the defendant not guilty on the grounds that there is no proof of a crime. The judgment of the court below and the judgment are acceptable in light of various circumstances indicated in the records and there is no violation of the rules of evidence or misapprehension of the legal principles as to unfair labor practices as pointed out in the grounds for appeal.

3. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)