[2] Matters to be deliberated to determine whether a worker's retirement constitutes a ipso facto retirement under a collective agreement

[2] Article 37 of the former Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996) provides that "if one or more half of the workers of the same kind of job employed at one factory, workplace, or other workplace are subject to a collective agreement, the said collective agreement shall apply to the workers of the same kind of job employed at the relevant factory, workplace, or other workplace." Thus, a collective agreement shall remain effective only when the workers who are not members meet the above conditions. Thus, in order to dispose of workers automatically pursuant to the provisions of the collective agreement, a collective agreement shall be applicable only when the workers are members at the time of their retirement, or when the workers of the same kind of job employed at all times at the time of their retirement, and if they were not members at the time of their retirement, the court shall determine whether to apply a collective agreement by examining whether the collective agreement can be applied to workers under the provisions of the Trade Union Act and the collective agreement at the time of their retirement.

1. As to the failure of hearing on unauthorized absence from office

Examining the reasoning of the judgment below in light of the records, the fact-finding by the court below as to whether the plaintiff was absent from office without permission and whether the defendant had an intention to continue employment is justified, and it cannot be deemed that there was an error of law by failing to exhaust all the deliberation of the judgment below or by violating the rules of evidence, or by

2. As to the incomplete hearing or misapprehension of legal principle on disciplinary procedure

A. According to the records, Article 9(3)3 of the Personnel Regulations, one of the Rules of Employment of the Defendant Company, provides that if a person is absent without permission for at least seven days, and if it is determined that the person has no intention to continue employment, disciplinary action shall be subject to deliberation by the personnel committee. While Article 11(3)2 of the Rules of Employment of the Defendant Company provides that the employee who is absent without permission for at least seven days shall retire, Article 11(1)10 of the Rules of Employment of the Defendant Company shall be subject to retirement. Article 40(6) of the collective agreement, which was in force at the time of the instant ipso facto retirement, provides that the employee who is absent without permission for at least seven days, shall be treated as retired, and Article 3(1) and (2) provides that the contents of the collective agreement shall prevail over the Labor Standards Act, the provisions of the Labor Standards Act, and individual employment contracts provided by the Defendant Company, the lower court shall apply the collective agreement to the person absent without permission for at least seven days, and if it is determined that the employee has no intention to continue employment.

B. In a case where an employer provides for a certain reason as a reason for ipso facto retirement and the ordinary procedure of dismissal or disciplinary action is different from that, unless the reason for ipso facto retirement is deemed to be the ground for automatic extinction of labor relations such as the worker's death, retirement age, termination of the term of labor contract, etc., ipso facto retirement is a dismissal subject to restrictions under Article 27 of the Labor Standards Act (amended by Act No. 5245 of Dec. 31, 1996). Therefore, in order to be effective ipso facto retirement, there must be justifiable reasons under Article 27 (1) of the Labor Standards Act. Thus, the collective agreement, etc. does not stipulate that the procedure for dismissal of a reason for ipso facto retirement should be taken, and thus, it cannot be deemed null and void because it does not stipulate that the restriction on dismissal under the Labor Standards Act should be avoided, unless the reason for ipso facto retirement is the same as that for the same reason as that for ipso facto retirement. This does not change even if it actually constitutes the ground for ipso facto retirement.

However, according to the collective agreement cited by the court below, Articles 49 through 51 stipulate the grounds, types, procedures, etc. of disciplinary action and there is no provision regarding the procedure in the case of ipso facto retirement. Further, Article 11(1) of the Rules of Employment of the defendant company stipulates that "at the time of absence without permission for not less than 7 days" as seen above 10 refers to "at the time of absence without permission for not less than 7 days," and Article 11(8) provides that "at the time of dismissal as one of the grounds for retirement, the procedure for retirement shall not be provided." Article 6 provides for the grounds for disciplinary action and the type and procedure of disciplinary action, and Article 9(3)3 of the Rules of Employment of the defendant company provides that "at the time of absence without permission for not less than 7 days" and Article 9(2) of the Rules of Employment of the defendant company provides that "at the time of absence without permission for employment" and Article 11(1) provides for the composition and detailed procedures for resolution and disciplinary action.

In light of these provisions, the collective agreement should first be applied to the rules of employment (including personnel regulations), so long as the collective agreement is deemed to be applied to the plaintiff as in the judgment of the court below, the defendant can automatically retire from office on the ground of "unex officio absence from office" without the need to undergo disciplinary procedures, such as the deliberation of the personnel committee prescribed in the personnel regulations.

However, Article 37 of the Trade Union Act (amended by Act No. 5244 of Dec. 31, 1996) provides that when a collective agreement applies to one half or more of the workers of the same kind who are ordinarily employed at one factory, workplace or other workplace, the collective agreement shall apply to workers of the same kind who are not members of the company, workplace or other workplace, the collective agreement shall be effective only when they meet the above conditions, and Article 4(3) of the collective agreement shall also be effective.

Therefore, in order for the plaintiff to retire ipso facto pursuant to the provisions of the collective agreement, the plaintiff is a union member at the time of retirement, or in the case of non-unions, more than half of the workers of the same kind as the plaintiff ordinarily employed in the defendant company at the time of retirement are subject to a single collective agreement. Therefore, the court below should have deliberated whether the plaintiff was a union member at the time of retirement (the plaintiff asserted that he was a non-union member at the time of retirement) and if the plaintiff was not a union member, it should have confirmed whether the collective agreement can be applied to the plaintiff at the time of retirement by examining whether the plaintiff is a union member at the time of retirement, and whether the collective agreement can be applied to the plaintiff. Nevertheless, the court below determined that the plaintiff can be automatically disposed of pursuant to the collective agreement without doing so. Thus, the court below erred by misapprehending the legal principles

C. In addition, the court below recognized the fact that the "worker who was absent without permission for at least seven days and who does not intend to continue to be employed," unlike the personnel regulations, can be retired ipso facto under the rules of employment, and that the defendant company has continued to apply the rules of employment in addition to the collective agreement with regard to the worker who was absent without permission for at least seven days, and determined that the defendant company can automatically dispose of the plaintiff without disciplinary procedure even through the rules of employment and practice not under the collective agreement.

However, according to the above rules of employment and personnel regulations, the rules of employment stipulate only the principle of discipline as to disciplinary action, the remaining matters are delegated to all the personnel regulations, and the personnel regulations as a part of the rules of employment are established as a general rule concerning disciplinary action according to delegation. As seen earlier, Article 11(1) of the rules of employment states "when he/she was dismissed from his/her office" as one of the grounds for retirement under Article 11(8) of the rules of employment. Thus, it is difficult to view it as a provision that only the ground for retirement is a typical reason, and it is difficult to regard it as a provision that only the reason for retirement from office, and it is difficult to determine that he/she was absent from office without permission for 7 days or more without permission, and the reason for disciplinary dismissal that "when he/she was absent from office without permission for 7 days or more as the ground for retirement under the rules of employment, he/she shall be deemed to have strengthened or strengthened the requirements that "when he/she was absent from office without permission."

Therefore, the court below erred by misapprehending the legal principles as to the rules of employment and by removing rules of employment and personnel regulations separately, and thereby adversely affected the conclusion of the judgment, and the ground of appeal assigning this error is with merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Chang-hun (Presiding Justice)