2. On April 8, 2005, the National Labor Relations Commission revoked the decision of retrial made between the Plaintiff and the Defendant joining the Defendant regarding the case of application for reexamination on unfair dismissal as of April 8, 2004.

3. Of the total costs of litigation, the part resulting from the participation is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

A. On January 14, 1985, the Plaintiff joined ○○○○ Company as the public bonds of ○○○○○ Company and worked for ○○○○○ Company on July 1, 200 and transferred the Plaintiff to the Intervenor Co., Ltd. (hereinafter “ Intervenor”) on July 1, 200, and served as the branch head of the Dong branch office from January 22, 2003.

B. On September 5, 2003, the Intervenor took disciplinary action against the Plaintiff on the grounds that he had abused female employees in the workplace and impeded their organizational ability (hereinafter “the first dismissal”). As to the Plaintiff’s request for remedy against unfair dismissal, the Seoul Regional Labor Relations Commission recognized the first dismissal as unfair dismissal on the ground that there is an excessive disciplinary action and defect in the disciplinary procedure on January 29, 2004, and issued a remedy order such as return to work. The Intervenor revoked the first dismissal against the Plaintiff on March 19, 2004 and returned the Plaintiff to the head in charge of supporting the Seoul Business Division on March 22, 2004 in accordance with the above remedy order.

C. On April 21, 2004, the Intervenor took a new disciplinary committee against the Plaintiff, and subsequently took a disciplinary measure again by supplementing disciplinary reasons, such as sexual harassment against female employees in the workplace (hereinafter “the second dismissal”).

D. As to this, the Plaintiff made a request for unfair dismissal to the Seoul Regional Labor Relations Commission, but was dismissed, and the National Labor Relations Commission filed an application for reexamination to the National Labor Relations Commission, but the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on April 8, 2005.

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2-2, Gap evidence 5-1, 2-6, and the purport of the whole pleadings

2. Whether the decision on retrial is lawful.

A. The plaintiff's assertion

The second dismissal against the plaintiff was (1) non-existence, distorted, or distorted of the grounds for dismissal, and (2) repeatedly dismissed for the same reason other than the grounds for the first dismissal, which is contrary to the principle of res judicata. (3) The reason for disciplinary action is relatively minor, the intervenor did not conduct the education for preventing sexual harassment against the plaintiff et al. for 20 years, and the plaintiff did not receive any disciplinary action from the intervenor for 20 years, and the branch office where the plaintiff works as the branch office was awarded several commendations, and in 2003, the disciplinary discretion was excessive.

B. Facts of recognition

(1) The details of sexual harassment on the Plaintiff’s female employees before July 11, 2003

(A) The Intervenor’s Dong branch of the Intervenor, who worked for the Plaintiff, was integrated into the existing Dong Ri branch and Dong Dong Dongdong branch, and was newly established from January 2003. The Plaintiff served as the deputy head or branch office in the Intervenor’s lecture branch, Taeyeong branch, Ansan branch, etc., and served as the head of the business division from January 22, 2003 to the first branch office of the above Dong Dong branch, one representative, one representative, three and four directors, and ten female employees.

(B) Around July 2002, the Plaintiff served as the Intervenor’s head of the Ansan Branch, and sent the documents by Nonparty 1’s remaining facsimile during the point of occupation, and she saw Nonparty 1 from his own rear, and she suled Nonparty 1. On February 2003, the Plaintiff told Nonparty 1 on several occasions during the period from 11:00 to 1:00 on February 2003, the Plaintiff told Nonparty 1 “I want to know whether I want to do so. I want to do so.”

(C) On April 2003, the Plaintiff, while serving as the principal branch of the Intervenor’s Dong Branch, demanded female employees Nonparty 2 to string the shoulder and shoulder at the branch office, which is the Plaintiff’s office. On June 2003, the Plaintiff demanded that female employees Nonparty 3 do the phone call on several occasions.

(D) In addition, the plaintiff completed the staff meeting on June 11, 2003 and moved to a singing room, and the plaintiff saw the non-party 4 of his own female employee from the stairs that "I want to use his knowledge about how much he gets off," and around July 2003, when the non-party 5 of his female employee reported on his business, he saw that "I have good results," and "I would like to take kis, kis, kis, kis, kis, and kis the face, etc.," and saw that Non-party 5 would take leave, and I would like to have the above female employee.

(2) The circumstances leading up to the Plaintiff’s sexual harassment before and after the incident on July 11, 2003

(A) On January 2003, when the plaintiff was newly established, the Dong branch of the intervenor, who had worked as a branch, had a low business performance in the branch compared with other places. However, on July 11, 2003, which was six months thereafter, the intervenor was announced as one of the national branches of the intervenors.

(B) On July 11, 2003, when the Plaintiff came to know of the above results through the Intervenor’s computer network, Nonparty 2, who was in charge of the administrative affairs of the Dong branch, ordered other employees of the Dong branch, to know the above facts. Nonparty 2, who was in charge of the administrative affairs of the Dong branch, did not turn back with the Plaintiff’s computer screen, was spared.

(다) 그 후 원고를 비롯한 위 동부지점 직원들은 같은 날 저녁에 회사 부근의 온달식당에서 최우수지점 선정 축하 회식을 하게 되었는데, 수차례 선정 축하에 따른 건배 등 음주를 하는 과정에서 원고는 여직원들을 자신의 좌석 옆자리로 불러 그동안의 노고를 치하하면서 술을 먹도록 권유하였고, 여직원 소외 6의 옆자리에 앉아 귓속말을 하면서 그의 귀에 입을 맞추거나 자리를 옮기는 여직원 소외 3의 엉덩이를 치는 등의 행동을 하였으며, 여직원 소외 7에 대해서는 원고가 한 입 먼저 먹은 상추쌈을 먹도록 하였다.

(D) In addition, in the process of completing a meeting at the above Onnuri restaurant, the Plaintiff took actions, such as raising or attempting to raise, among female employees, including Nonparty 4, 7, and 8, who were gathered in the future with the employees of the restaurant. In particular, in the case of Nonparty 8, the Plaintiff only she was aware of her chest, and caused other female employees to feel uncomfortable.

(3) The details of the investigation and the primary dismissal of the Plaintiff

(A) On July 26, 2003, the Intervenor received information from one of the female employees of the above sub-branch in anonymously sexual harassment against the said sub-branch on several occasions. On August 6, 2003, the Intervenor investigated the employees of the above sub-branch into whether sexual harassment was sexual harassment against the female employees, and eight female employees, including Nonparty 2, were sexual harassment against the Plaintiff.

(B) The employees of the above newspaper team confirmed the facts of delivering the statements of female employees to the Plaintiff in anonymous manner. However, when the Plaintiff denied them and demanded real names, such as face-to-face meeting with female employees, the Plaintiff called the Plaintiff to the Plaintiff on the ground of the protection of the victims, and issued a waiting order to the Seoul regional project division on August 11, 2003.

(C) On August 25, 2003 and September 2, 2003 of the same year, the intervenor held a punishment committee to hear the Plaintiff’s opinion and deliberated on whether to take disciplinary action. At the time, the intervenor was requested by the Plaintiff to verify facts through inspection of the real name verification statement and substitution with female employees stated, but did not accept the request and proceeded with the procedure. On September 5, 2003, the intervenor dismissed the first dismissal of the instant case.

(D) On August 6, 2003, the Plaintiff sought to verify the contents of the above investigation from the staff of the Newspapers Team to the point room from July 1 to August 8, 2003, but did not obtain special confirmation from the female employees. As the female employees were assigned to any other department from the 11st of the same month and the number of female employees could no longer be confirmed, the Plaintiff attempted to collect favorable statements from them, such as requesting some female employees to speak truely, and did not obtain any results. On September 10, 2003, which was after the first dismissal, sought to find out the situation of the case and the 7th house of the female employees without any contact, asked them to see Non-Party 7’s perception, etc., and recorded the contents.

(4) Grounds for the second dismissal

Upon receiving the above order of remedy from the Seoul Regional Labor Relations Commission, the Intervenor returned the Plaintiff to the original employer, followed a new standing committee, followed the second dismissal of the instant case, and added the grounds for the first dismissal to the effect that the Intervenor took advantage of Nonparty 1 at the time of his/her employment in the head of the Ansan Branch, other than the grounds for the first dismissal, and that the Plaintiff took advantage of the Intervenor’s instruction to conceal and rationalize his/her act and met with the damaged female employees.

(5) Other matters regarding the determination of disciplinary action

(A) In around 1997, the Plaintiff received a warning by shouldering the view of Nonparty 9, which was the head of a ○○○ Insurance Co., Ltd., at the instant place of business, at the time of serving as the head of a ○○○○○ Insurance Co., Ltd.

(B) In the sense of normal encouragement, the Plaintiff frequently participated in the behavior, such as playing the employees’ descendants, etc., and there was no room for female employees in the above Dong branch prior to around July 11, 2003 to the Plaintiff’s behavior. In the case of female employees Nonparty 10 or Nonparty 11, who worked together, considered that the Plaintiff’s behavior was not likely to cause a sense of shame or encouragement. Of the damaged female employees, Nonparty 5 expressed the first fact of damage on August 6, 2003, but expressed that Nonparty 5 did not want to take any disadvantageous measure, such as disciplinary action, against the Plaintiff.

(C) On August 23, 2003, in the process of deliberation for dismissal of the Plaintiff, the Plaintiff asked Nonparty 12 of the aforementioned newspaper creating team Nonparty 12 to refer to the Plaintiff’s submission of evaluation of the Plaintiff’s usual behaviors, character, etc. from his employees, and submitted them to Nonparty 12 after receiving the personal seal of the Plaintiff from approximately 40 members of the club. The most of the contents were that there was no special problem in the Plaintiff’s usual character or behavior. The Plaintiff sent the mail to the employees prepared on August 26, 2003, and asked them to list some of the Plaintiff’s sexual harassment cases at the time of the issue as accompanied by the accompanying document, and to cooperate so that the damaged female employees would no longer be likely to cause damage to the people.

(D) On October 9, 2001, the Intervenor provided education for the prevention of sexual harassment through intra-company broadcasts. From May 27, 2002 to May 31, 2002, the Intervenor provided lectures to employees including Seoul CRM centers, etc. to which the Plaintiff was affiliated, including the Seoul CRM centers, including for employees, to prevent sexual harassment for two hours. On September 2002, the Intervenor produced and distributed the “prevention card of sexual harassment” classified for executive employees, female employees, and male employees and the “prevention of sexual harassment”.

(6) Provisions pertaining to the personnel affairs and disciplinary action of the Intervenor

(A) Article 29 of the Intervenor’s Personnel Regulations provides for disciplinary reasons, a written oath or company rules, or a speech or behavior contrary to the duty on duty, thereby impairing the order of the company or impairing the company’s reputation (Article 29). In cases where the company’s reputation or credit is harmed or corrupts the public morals (Article 17). In cases where the company’s reputation or credit is damaged inside and outside the country (Article 18), or where the formation of the organization is detrimental or undermining its organizational power (Article 19), or where the employment environment is aggravated by sexual language or behavior or by causing sexual humiliation (Article 20).

(B) In addition, Article 32 (Determination of Disciplinary Measures) of the Intervenor’s Disciplinary Action Regulations provides that the Disciplinary Action Committee shall deliberate and resolve on a disciplinary measure according to the “Criteria for Determination of Disciplinary Measures” in attached Form 3, which takes into account the type of misconduct, degree of misconduct and intentional negligence, severity of negligence, ordinary work attitude, work performance, etc. of a discipline accused person. In the attached Form 3 (Criteria for Determination of Disciplinary Measures), where “where the scope of violation is large and intentional,” and “where the scope of violation is significant, and the scope of violation is small, minor, minor, and intentional,” the disciplinary measure is classified according to the scope of suspension and demotion (excluding punishment for some grounds, such as embezzlement, etc. of public funds), and “where the scope of violation is large, heavy, long, large, and large, and the scope of the violation is small, and the scope of the violation is small, and the disciplinary measure is classified according to the grounds for disciplinary action and the degree thereof.

[Based on the recognition] Gap evidence 3, 4, 6, 7, 8-1, 2, 9, 10-1, 2, 12, 13-1 through 3, Gap evidence 15-1, 2, 16-1, 2, 18-1, 20-1 through 3, Eul evidence 25-1, 26 through 47, Eul evidence 3-1, 3-1, 49-1, 3-2, 54, 57-1, Gap evidence 62-1, 3-2, 3-1, 3-2, 3-2, 3-1, 3-2, 3-1, 3-2, 6-1 through 4-2, 6-1, 3-2, 3-2, 6-1, 62-1, 63-4, 6-1, 6-2, 7-1, 6-3

C. Relevant statutes

The entries in the attached Table-related statutes are as follows.

D. Determination

(1) Whether the grounds for disciplinary action are applicable

(A) Whether sexual harassment is sexual harassment

1) “Sexual speech and behavior, etc.” under the premise of “sexual harassment on the job” under Article 2 subparag. 2 of the Equal Employment Opportunity Act means physical, speech, and visual activity related to the physical relationship between men and women, or physical characteristics of male or female, which objectively means an act that may cause a general and average person in the same position as the other party to feel sexual humiliation or aversion, in light of the sound common sense and practice of the community. In order for sexual harassment to be established under the above provision, the act does not necessarily have to have sexual motive or intent. However, in light of the specific circumstances such as the relationship between the parties, place and situation where the act was committed, the other party’s explicit or presumed response to the act, the content and degree of the act, whether the act was one time or for a short period, or whether it was continued, the act may objectively cause the general and average person in the same position as the other party to feel sexual humiliation or aversion, and the other party to the act should be acknowledged as having sexual humiliation or aversion by such act.

2) According to the facts acknowledged earlier, rather than from the Plaintiff’s sexual motive or intent, the Plaintiff’s behavior against female employees was committed as the head of a branch rather than with the Plaintiff’s sexual motive or intent, and the Plaintiff’s behavior took place in an excessive interest situation following the selection as the highest nationwide branch. However, similar behavior was repeated, and the content and degree of the act is not only a mere scambling or prone behavior permissible in daily life, but also an act that causes female employees under the Plaintiff’s direction and supervision to feel sexual humiliation or aversion. Thus, the Plaintiff’s speech and behavior constitutes sexual harassment against female employees.

(B) Whether the instructions were not followed

According to the facts acknowledged above, after the plaintiff investigated the plaintiff on August 6, 2003, the plaintiff did not comply with the plaintiff's instructions by making conversations to verify facts or attempting to individually meet the victim's female employees after receiving the intervenor's instructions to prohibit the contact for the protection of female employees. However, since all the facts issued to the plaintiff at the time are anonymous, it is difficult for the plaintiff to find it difficult for the plaintiff to find out what behavior with the victim was a cause for disciplinary action, the plaintiff's attempt to contact with the victim female employees is inevitable to exercise his/her right of defense, which is located in the position of the person subject to disciplinary action, and its contents are nothing more than actively concealing his/her act or doing harm to the damaged female employees by taking advantage of his/her position. Thus, it is difficult to view the plaintiff's act as a violation of the plaintiff's instructions and actions as a ground for disciplinary action.

(C) Sub-decisions

Therefore, the part that recognized the order of the intervenor as a ground for disciplinary action against the plaintiff is illegal. However, since the sexual harassment against the plaintiff's female employees, which is recognized as above, has undermined the order of the intervenor and undermined the employment environment of female employees, it constitutes a ground for disciplinary action under Article 29 (2), 17, and 20 of the Intervenor's Personnel Management Regulations. Thus, the plaintiff's assertion that there is no ground for disciplinary action of this case is groundless.

(2) Whether prohibition against double Jeopardy or the good faith principle is violated

(A) The employer’s disciplinary action against a worker is a punishment against a worker’s violation of the order of prohibition against double Jeopardy or the principle of good faith, and the employer may revoke the disciplinary action even in his own review procedure. If the employer voluntarily acknowledges that there was a defect in the disciplinary procedure, recognition of the grounds for disciplinary action, and illegality of the disciplinary action, etc., the employer may revoke the disciplinary action on his own without any remedy order issued by the Labor Relations Commission or a court to nullify the invalidity of the disciplinary action. Furthermore, if the disciplinary action is revoked, it may be possible to take a new disciplinary action, and if the disciplinary action is revoked, it shall be deemed that the dismissal is not retroactively dismissed as in the same manner as the judgment of nullification of the dismissal became final and conclusive. Thus, it cannot be deemed that the new disciplinary action is against the principle of prohibition against double Jeopardy or the principle of good faith by adding the same reason or new reason (see, e.g., Supreme Court Decisions 95Da53102, Apr. 23, 19

(B) Therefore, as seen earlier, the Intervenor’s revocation of the first dismissal order against the first dismissal in accordance with the Seoul Regional Labor Relations Commission’s order for remedy against the first dismissal, and then followed the dismissal procedure, and even if the second dismissal in addition to the grounds for the first dismissal is the same as those for the first dismissal, the second dismissal in most cases does not violate the principle of res judicata or the principle of good faith, and thus, the Plaintiff’s assertion as to this is also rejected.

(3) Whether a disciplinary decision is appropriate

(A) The "justifiable reason" when an employer takes disciplinary action against a worker refers to the case where there is a reason that the employer is responsible for the worker to the extent that it is not possible to continue the employment relationship under the social norms. Meanwhile, in the employment rules, if the disciplinary action for the same reason is prescribed and various grades of disciplinary action are possible, the choice of certain disciplinary action from among them belongs to the discretion of the authorized person. However, such discretion does not belong to the arbitrary and convenient nature of the authorized person. There is a need for a balance that is deemed reasonable under the social norms between the disciplinary action and the disciplinary action, and the imposition of harsh sanctions against a minor disciplinary action is null and void as an abuse of the right of disciplinary action (see Supreme Court Decisions 90Da20428, Oct. 25, 1991; 91Nu584, May 22, 1992, etc.).

(B) According to the facts acknowledged earlier, the Plaintiff’s act of repeatedly causing a sense of sexual humiliation to many female employees, and certain female employees expressed an excessive interest to the extent that they exceeded their common sense, such as talking with telephone on holidays or in the hearts, thereby causing severe pain to the victims, and thus, the Plaintiff’s disciplinary action against female employees was required. In light of the above facts, it is deemed inevitable to punish the Plaintiff’s above behavior.

However, even if the above behavior of the Plaintiff was likely to cause sexual humiliation to female employees, it does not appear that the extent of accepting it is significant. Moreover, it appears that the Plaintiff’s above behavior was derived from the intent of inducing the unity and unity of the employee in the workplace as a manager responsible for the branch rather than from explicit sexual expression or sexual intent, and it appears that the Plaintiff’s behavior was difficult to achieve the result of the Intervenor’s most excellent nationwide branch in the short period of six months, if it was impossible for the Plaintiff to act as above, and it was difficult to view that the Plaintiff’s dismissal did not constitute an abuse of the Plaintiff’s right to discipline or disciplinary action against the Plaintiff, which was established by social norms, by taking into account the following circumstances: (a) it is difficult to view that the Plaintiff’s dismissal of the Plaintiff’s sexual harassment act resulted from an excessive expansion of selection of the excellent branch nationwide; and (b) it constitutes an abuse of the Plaintiff’s right to discipline or disciplinary action against the employee by taking account of the circumstances established by the Seoul Labor Relations Commission.

(4) The theory of lawsuit

Therefore, although the second dismissal against the plaintiff constitutes abuse of the right of disciplinary action, the decision of reexamination of this case which held that the second dismissal of the plaintiff is valid since the plaintiff's sexual harassment constitutes a ground for responsibility to the extent that it is impossible to continue the labor contract relationship.

3. Conclusion

Therefore, the decision of the court of first instance that has different conclusions shall be revoked, and it is so decided as per Disposition by the cancellation of the decision of the court of first instance and the cancellation of the decision of the retrial of this case.

Judges Cho Yong-ho (Presiding Judge)