[2] The case holding that the employer cannot refuse employment under the premise that the above worker is in a probationary period on the ground that the employer did not notify the extension of the period after the expiration of the probationary period and thus, is not an employee during the probationary period, and there is no disciplinary action against the above worker on the ground that there is a certain misconduct

[2] The case holding that the employer cannot refuse employment under the premise that the above worker is in a probationary period on the ground that the employer did not notify the extension of the period after the expiration of the probationary period and thus, is not an employee during the probationary period, even though disciplinary action is taken against the above worker through a separate disciplinary procedure on the ground that there was a certain misconduct

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, the part arising from the participation by the Plaintiff and the Defendant’s Intervenor 1 shall be borne by the Intervenor and the remainder by the Defendant respectively, and the part arising between the Plaintiff and the Defendant’s Intervenor 2, including the part arising from the participation, by the Plaintiff.

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the entries in Gap evidence 1, 2, and 3-1 and 2.

A. The plaintiff company employs 100 full-time workers and operates the taxi passenger passenger transportation business, etc. The intervenor 2 entered the plaintiff company on October 26, 2004 and re-entered on March 12, 2005 after the withdrawal on January 18, 2005, and the participant 1 served as a taxi driver at each plaintiff company on June 18 of the same year.

B. On July 30, 2005, the Plaintiff Company: (a) notified the Intervenor 2 of his refusal of employment pursuant to Article 16(7) of the Rules of Employment on the ground that the Intervenor 1, on July 20, 2005, caused disturbance to the Plaintiff Company’s work discipline by verbal abuse at the office during the training period, unfaithless work attitude, and spread of will secret; (b) on August 20, 2008, the Intervenor 1 caused disturbance such as drinking during the training period to lose the Plaintiff Company’s reputation; and (c) on the ground that he was unable to continue to work as a worker, he was notified of his refusal of employment pursuant to Article 16(7) of the Rules of Employment; and (d) the Intervenor 1 notified that the employment contract is terminated from the 22th day of the same month (hereinafter

C. Accordingly, on September 2, 2005, the intervenor 1, and the intervenor 2, on the 6th of the same month, were dissatisfied with the refusal of this case employment, and filed an application for remedy with the Chungcheong Regional Labor Relations Commission as 2005, 200, and 204. On October 31 of the same year, the Chungcheong Regional Labor Relations Commission issued an order of remedy to recognize the refusal of this case as unfair dismissal and to reinstate the intervenors to their original position and to pay the amount equivalent to the wages during the period of dismissal.

On December 5, 2005, the Plaintiff Company filed an application for reexamination with the National Labor Relations Commission as of December 5, 2005, and the National Labor Relations Commission dismissed the application for reexamination of the Plaintiff Company on May 19, 2006 (hereinafter “instant decision for reexamination”).

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff company's assertion

Although the intervenors should have shown good faith and best working attitude as probationary personnel, the Intervenor 1 was investigated by the police station after drinking so that the Intervenor 1 was subject to investigation by the police station, etc., and the Intervenor 2 also found the Intervenor 2 as the office of the Plaintiff, and led to a bad working attitude.

Accordingly, the plaintiff company's refusal to conclude a labor contract with the intervenor as it is deemed inappropriate to continue a normal labor relationship with the intervenor. Thus, the refusal of this case's regular employment constitutes objective and reasonable grounds.

Therefore, the retrial decision of this case, which judged that the refusal of this case's main employment is unfair, is unlawful.

B. Facts of recognition

Each of the above evidence, evidence Nos. 4-1, 2, 5-1, 6-1, 2, 3, 7-1 through 11, 13, 14-1, 2, 2, 2, 2-2, and 3-2 of the evidence No. 3-2, the following facts can be acknowledged in light of the whole purport of the pleadings in each of the above evidence, evidence No. 4-1, 5-1, 6-2, 7-1 through 11, 13, 14-1, 14-2, 3-2:

(1) 2 part of the intervenor

(A) On March 12, 2005, the letter of employment contract prepared by the Plaintiff Company with the Intervenor on March 12, 2005, provides that the period of time may be extended by three months if it is inevitable to extend the period of time from March 12, 2005 to September 11, 2005, even if the period of time expires due to other reasons, such as the attitude of time, and the refusal of this employment may be denied if it is deemed inappropriate for the Plaintiff to be a driver of the city even if the period of time has been extended or the period of time has been extended (the period of time: March 12, 2005; June 11, 2005; June 12, 2005 to September 11, 2005; the period of time may be extended by 3 months if it is deemed inappropriate for the Plaintiff to be a driver of the city even if the period of time has been extended (the period of time may be referred to as "the period of time limit for the Plaintiff's 2).

However, the extension of the trial period stated in the above employment contract is an additional entry after the execution of the contract by the non-party 1 of the head of the plaintiff company, and the plaintiff company did not notify the above intervenor of the extension of the trial period (the plaintiff company did not notify the extension of the trial period around December 19, 2005, in the process of the decision on reexamination of this case).

(나) 참가인 2는 2005. 7. 26. 19:00경 근무시간 중임에도 원고 회사 사무실로 찾아가 원고 회사 소외 2 주임에게 천안 시내의 택시회사 근로계약조건과 자신의 근로계약조건이 다르다는 이유로 ‘엊그제 근로계약서 내용도 충분히 검토하지 못하고 서명했는데 회수하여 찢어버리러 왔다’라는 취지로 말하였다.

(C) On July 2005, 2005, the Intervenor 2 operated a taxi over six times in service.

(D) The intervenor 2 filed a complaint against the non-party 1 on the suspicion that the above non-party 1 forged his part of the extension of the probation period of the employment contract on March 12, 2005. However, the Daejeon District Prosecutors' Office issued a non-party 1 on June 26, 2006.

(2) Part concerning the intervenor 1

(가) 원고 회사가 2005. 6. 18. 참가인 1과 근로계약을 체결하면서 작성한 근로계약서에는 시용기간이 ‘2005년 6월 18일 ~ 2005년 9월 17일’로 기재되어 있고, 그 부분을 제외한 나머지 기재는 위 (1) ㈎항 참가인 2 부분과 동일하다.

(B) At around 23:00 on July 29, 2005, the Intervenor 1 was under investigation by an investigative agency for suspicion that he/she had inflicted an assault on and inflicted an injury on the customer and the pilot fee while drinking together with his/her birth. Accordingly, the Intervenor was unable to normally work at the Plaintiff Company on the 30th day of the same month and August 2 of the same year [the Intervenor was found to have violated the Punishment of Violences, etc. Act (a violation of at night, deadly weapons, etc.) in relation to the above injury, and the obstruction of performance of official duties was sentenced to suspension of execution three years and six years of imprisonment, suspension of execution, suspension of execution of 120 hours, and the above judgment became final and conclusive on the 23th day of the same month].

(C) On August 1, 2005, the Plaintiff Company announced that it introduced a high-ranking allowance system against its employees, and the Intervenor 1 found the office, rest room, and maintenance room in the Plaintiff Company without operating a taxi even if he was on board the vehicle at around 13:00 of the same month, and criticized the Plaintiff Company for the introduction of a high-ranking allowance system.

(D) On July 2005, the Intervenor 1 operated a taxi more than five times in service.

(3) The provisions of the Plaintiff Company relating to the refusal of principal employment are as follows.

【Employment Rules】

Article 15 (Period of Probation and Procedures for Principal Employment) Any company shall carry out the probationary period and the procedures for principal employment by the following issuance:

1. A newly employed person shall have his/her probation period for three months from the month of employment;

2. For a person who has been regularly employed, the probation period shall be included in the number of years of service;

3. The period of trial may be shortened or extended in consideration of the nature of duties, experience of employees, etc.;

4. An order for a re-management period for three months depending on whether to improve: Provided, That an order for re-management period may be issued;

Article 16 (Refusal of Regular Employment)

1. Where a person whose probationary period or probationary period has expired and falls under any of the following cases, his/her regular employment may be refused:

(vii)a person whose continued work is deemed inappropriate for the member, such as function, attitude of duty, character, health conditions, etc., during a probationary period or upon expiration of a probationary period;

【Organization Convention】

Article 16 (Employment and Probation Period)

2. The probationary period shall not exceed three months (Provided, That where continuous employment is deemed inappropriate during the probationary period, the probationary period may be refused or the probationary period may be extended by three months);

(c) Markets:

(1) The dismissal of a worker in the period of probation or the refusal of the conclusion of this contract upon the expiration of the period of probation is an exercise of the right of cancellation reserved against the employer. In light of the purpose and purpose of the pilot system that intends to observe and determine the eligibility of the worker in question, such as business ability, qualities, figures, sincerity, etc., it is recognized that it is broad rather than ordinary dismissal, but even in this case, it should be recognized that there exists an objective reasonable reason under the generally accepted social norms (see Supreme Court Decision 2002Da62432, Feb. 24, 2006).

(2) Whether the Intervenor at the time of refusal of this case’s main employment is an employee during the period of time

First of all, the part of the Intervenor 1, which was prepared by the said Intervenor on June 18, 2005 with the Plaintiff Company, is clear that the Intervenor 1 is a worker during the time of refusal of the present employment, unless the said Intervenor’s time period is specified from June 18, 2005 to September 17, 2005.

Next, the part of the Intervenor 2, which was prepared by the Intervenor on March 12, 2005 with the Plaintiff Company, stated that the initial trial period of the Intervenor from March 12, 2005 to June 11 of the same year is extended from March 12, 2005 to September 11 of the same year. According to Article 15 Subparag. 4 of the Rules of Employment of the Plaintiff Company and Article 16 Subparag. 2 of the collective agreement, the Plaintiff Company may extend the trial period for three months depending on certain circumstances when the initial trial period expires. However, the extension of the trial period has a significant impact on the worker’s legal status. Since the extension of the time period constitutes an important part of the labor contract, at least the extension of the time period is effective as the extension of the time period stated in the above Intervenor’s labor contract is unilaterally stated by Nonparty 1, the head of the Plaintiff Company, and thus, it cannot be said that the extension of the time period is invalid for the Intervenor 20 days to the above Intervenor.

(3) Part concerning the intervenor 1

In full view of all the circumstances revealed in the pleadings, such as the fact that the above intervenor was at work hours after the end of work hours, but is punished for dispute over the drinking place, that the intervenor did not perform the company's business for two days, criminal punishment was imposed, that the plaintiff company unilaterally slandered the excess allowances notified by the plaintiff company without going through legitimate procedures during working hours, and that the plaintiff company violated the speed of restriction on vehicles at five times or five times during the taxi operation in the month of July 2005, and that the above intervenor violated the speed of restriction on vehicles, it shall be deemed that there was a reasonable reason to refuse regular employment by deeming that the above intervenor was not qualified as a driver. This part of the plaintiff company's assertion is with merit.

(4) 2 parts of the intervenor

As seen earlier, insofar as the Intervenor at the time of the refusal of this case’s recruitment, as long as it is deemed that the said Intervenor is not an employee during the period of probation, the Plaintiff Company, aside from being subject to disciplinary action through a separate disciplinary procedure on the ground that the said Intervenor committed a certain misconduct, shall be deemed to be unlawful in itself on the premise that the said Intervenor was in the period of probation. This part of the Plaintiff Company’s assertion

(5) Therefore, the part that determined that the refusal of this case to appoint the Intervenor 1 among the decision made by the reexamination of this case was unfair is unlawful, and the part that determined that the refusal of this case to appoint the Intervenor 2 is unfair is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Tae-tae (Presiding Judge)