B. Whether the choice of disciplinary action is a convenient discretionary act of the person having authority over disciplinary action in a case where the same disciplinary action is prescribed to enable various grades of disciplinary action against the same disciplinary ground (negative)

(c) Whether an employee dismissed due to a cause attributable to the employer should deduct the income (the intermediate income) earned by the employee engaged in another workplace during the period of dismissal from the amount of wages to be paid by the employer (affirmative);

D. Whether Article 38 of the Labor Standards Act concerning the payment of temporary closure allowances is applicable even when a worker is dismissed due to a cause attributable to the employer (affirmative), and whether the scope of temporary closure allowances cannot be subject to interim income deduction within the scope of interim income deduction (affirmative)

B. According to the rules of employment and the Commercial Code, if the disciplinary action is prescribed as possible for the same cause, the choice of any kind of disciplinary action among them shall belong to the discretion of the authorized person having authority over disciplinary action. However, such discretion does not belong to the arbitrary and convenient discretion of the authorized person having authority over disciplinary action, and there is a need for a balanced existence between the grounds for disciplinary action and the disciplinary action, and imposing a harsh disciplinary action against a minor disciplinary cause shall be null and void as an abuse of the authority over disciplinary action.

C. Even if a worker dismissed due to a cause attributable to the employer fails to provide his/her labor during the period, he/she may claim wages during the period to the employer pursuant to the main sentence of Article 538(1) of the Civil Act. In such cases, in cases where there are profits accrued by the worker from his/her own debt, he/she is obligated to repay such profits to the employer pursuant to the provisions of Article 538(2) of the Civil Act. Since the income earned by the worker who worked in another workplace during the period of dismissal is the profits accrued from the discharge of his/her obligation to provide labor, the employer is entitled to deduct the above profits (the so-called interim income) from paying the wages during

D. Article 38 of the Labor Standards Act provides that an employer shall pay an allowance of not less than 70/100 of average wages of the relevant worker during the period of suspension of business, in order to guarantee the minimum standard of living of the worker. The suspension of business here includes cases where the employment of the relevant worker is rejected or impossible against his/her will despite the existence of the employer to provide his/her labor in accordance with the labor contract. Thus, even if the worker is dismissed due to a cause attributable to the employer, the Labor Standards Act on the above suspension of business may apply. In such a case, the above provision cannot be applied within the scope of the above provision's interim income deduction among the amount of wages during the period of dismissal for which the worker is entitled to receive, and it shall be deducted within the scope of the amount exceeding

The costs of appeal are assessed against the defendant.

1. As to ground of appeal No. 1

According to the reasoning of the judgment below, the court below rejected Defendant 1’s act of 1987.6.11 and then dismissed Defendant 2’s act of 10th day off work hours and 1st day work hours after 7th day work hours and 8th day work hours after 1989, which the Plaintiff had been subject to disciplinary action against Defendant 1. The Defendant Company was established for the purpose of manufacturing and repairing automobiles, and adopted the final report system by stipulating the age limit for employees. Employees of the Defendant Company are composed of employees, driver, guide and maintenance workers, and 40th day work hours were automatically members of the Seoul Bus Corporation and the Seoul Franchis Union without permission for 9th day work hours and 0th day work hours before 17th day work hours and 17th day work hours of the Plaintiff, etc.

In light of the records, the above fact-finding by the court below is just and there is no error of law in misconception of facts due to a violation of the rules of evidence.

Furthermore, the lower court determined that the Plaintiff’s early retirement and work site outflow of the above recognition is subject to disciplinary action under the rules of employment. However, inasmuch as the Plaintiff’s early retirement and work site outflow were caused by erroneous interpretation of the provisions regarding working hours in the process of seeking to accomplish his/her claim as to the improvement of wages and working hours as the Plaintiff et al. did not join a trade union unlike the driver, the lower court determined that the Plaintiff’s disciplinary action against the Plaintiff during the period of 10 persons, including the Plaintiff, was the first early retirement of 30 minutes at one time. The lower court held that the Plaintiff’s early retirement and work site outflow of the above recognition was the case where the Plaintiff’s early retirement and work site outflow were caused by erroneous interpretation of the provisions regarding working hours and the act was committed once more than 30 minutes, and that the Plaintiff’s early retirement and work site outflow had no justifiable grounds for disciplinary action against the Plaintiff during the period of 6 months after the preparation of the document recording the current status of each working group’s work site by the Defendant.

The above judgment of the court below is just and there is no error of law such as the theory of lawsuit.

In the rules of employment or punishment, if the disciplinary action is prescribed as possible for the same reason, the choice of certain kinds of disciplinary action should belong to the discretion of the person having authority to take the disciplinary action. However, such discretion does not belong to the discretion of the person having authority to take the disciplinary action, and there is a need to maintain a balance that is deemed reasonable by social norms between the grounds for disciplinary action and the disciplinary action, and imposing a harsh punishment on the minor disciplinary action should be null and void as an abuse of the authority to take the disciplinary action.

If the plaintiff demanded improvement of working conditions, such as wages and working hours, which are disadvantageous to the defendant as well as the maintenance worker, but the defendant did not comply with such demand and brought about work sites to identify the accurate work status of the maintenance worker, this cannot be viewed as a wrongful act to the extent that early retirement and outflow of work sites is considerably unreasonable, unlike ordinary refusal of work, unauthorized early retirement and outflow of company goods, it cannot be viewed as a wrongful act to the extent that the above early retirement and outflow of work sites is considerably unfair. Thus, the court below determined that the dismissal disposition against the plaintiff of this case is an abuse of disciplinary right and invalid disposition without justifiable grounds, in light of the above legal principles, considering all circumstances such as early retirement and work site outflow, the motive and background of the plaintiff's early retirement and work site outflow, the plaintiff's contribution to the company, equity with other maintenance workers, etc.

2. As to the second ground for appeal:

Even if a worker dismissed due to a cause attributable to the employer fails to provide his/her labor during the period, he/she may claim wages during the period to the employer pursuant to the provisions of the main sentence of Article 538 (1) of the Civil Act, and in cases where there are profits accrued from his/her discharge of his/her own debt, he/she has the obligation to repay such profits to the employer pursuant to the provisions of Article 538 (2) of the Civil Act. Since profits accrued from the worker's work at another workplace during the period of dismissal are profits accrued from the discharge of his/her obligation to provide labor, the employer may deduct the above profits (so-called interim income) from the payment of wages during the period

However, Article 38 of the Labor Standards Act provides that an employer shall pay not less than 70 percent of the average wage of the relevant worker during the period of suspension of business in cases where the worker suspends his/her business due to reasons attributable to the employer in order to guarantee the minimum standard of living of the worker. The suspension of business here includes cases where the employment of the relevant worker is refused or impossible against his/her will despite the existence of the employer to provide his/her labor in accordance with the labor contract. Therefore, the Labor Standards Act concerning the above suspension of business may apply even in cases where the worker is dismissed due to reasons attributable to the employer. In such cases, it shall not be considered as the object of interim income deduction within the limit of the above suspension of business, and shall be deducted only within the limit of

The court below held to the effect that when calculating the wages during the period of dismissal that the defendant is liable to pay to the plaintiff, the defendant shall pay them to the plaintiff, on the other hand, while the defendant shall pay at least 70 percent (Shutdown allowance) of average wages to the plaintiff pursuant to Article 38 of the Labor Standards Act, the amount of the plaintiff's wages during the period of dismissal falls short of the above amount of shutdown allowance, and thus there is no room to deduct interim income from the wages during the period of dismissal (it is wrong that the court below stated that the amount of the plaintiff's wages during the period of dismissal falls short of the above amount of shutdown allowance (the amount of shutdown allowance falls short of 70 percent of average wages). The judgment below is just and there is

Therefore, the appeal is dismissed as it is without merit, and all costs of appeal are assessed against the losing defendant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)