[부당노동행위구제재심판정취소][공1997.3.15.(30),792]
[1] Whether the period of request for remedy against unfair dismissal, etc. or unfair labor practices is the exclusion period (affirmative)
[2] Whether the application for unfair dismissal is an administrative appeal procedure (negative), and whether the proviso of Article 18(3) of the Administrative Appeals Act can be inferred applied to the application for unfair dismissal (negative)
[1] The administrative remedy procedure of the Labor Relations Commission as to unfavorable disposition such as dismissal without justifiable reasons for workers under Article 27-3 (1) of the Labor Standards Act is to prevent the harm caused by the division of the litigation procedure, the delay of the procedure, excessive burden of expenses, etc. in accordance with the ordinary method of remedy through civil procedure, and to promote a prompt, simple, economical, and flexible remedy for infringement of rights. As such, pursuant to Article 27-3 (2) of the Labor Standards Act and Article 40 (2) of the Trade Union Act which is applicable mutatis mutandis pursuant to Article 27-3 (2) of the Labor Standards Act and Article 40 (2) of the same Act for the purpose of securing the function as prompt,06 simplified administrative remedy procedure, a request for remedy against disadvantage disposition such as dismissal without justifiable reason for the employer's workers shall be filed within 3 months from the date of the act (the date of termination). Since such period is excluded, the right to apply for remedy for infringement of rights becomes extinct after the expiration of that period, and the applicant's failure to observe
[2] The proviso of Article 18(3) of the Administrative Appeals Act that a person may file an administrative appeal even after the lapse of the period for filing an administrative appeal request under the main sentence of Article 18(3) is a provision that applies to cases where an administrative appeal is sought against an administrative disposition. The application for unfair dismissal pursuant to Article 27-3(1) and (2) of the Labor Standards Act is not an administrative agency’s administrative appeal procedure against an illegal or unfair disposition, but merely an act seeking an order for remedy from the Labor Relations Commission, which is an administrative disposition, and its legal nature is completely different from the administrative appeal procedure against an administrative disposition. Thus, the above provision of the Administrative Appeals Act cannot be inferred
[1] Article 27-3 of the Labor Standards Act, Article 40 of the Trade Union Act / [2] Article 18(3) of the Administrative Appeals Act, Article 27-3 of the Labor Standards Act, Article 40 of the Trade Union Act
[1] Supreme Court Decision 95Nu11238 delivered on August 23, 1996 (Gong1996Ha, 2884)
Plaintiff
The Chairperson of the National Labor Relations Commission
5. Dried community credit cooperatives (Attorney Choi Jae-ho, Counsel for defendant-appellant)
Seoul High Court Decision 95Gu24243 delivered on March 26, 1996
The judgment below is reversed and the case is remanded to Seoul High Court.
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, when an employer dismisses a worker without any justifiable reason, the employer may make a request for remedy to the Labor Relations Commission within three months from the date of the dismissal, and even if the worker subject to the disciplinary action can make a request for remedy pursuant to the rules of employment or personnel regulations, the dismissal of disciplinary action shall take effect immediately, and when the plaintiff can make a request for remedy, it shall be from November 16, 1994, not from the time when the plaintiff was notified of the decision on reexamination. Therefore, on April 11, 1995, when the plaintiff made a request for remedy, it shall be obvious that the period of request three months has passed since three months, and the proviso of Article 18 (3) of the Administrative Appeals Act provides that the request for remedy may be made even after the lapse of the period of request for remedy, and therefore, even in the case of the request for remedy, it shall be deemed that the request for remedy can be made after the expiration of the period of request for remedy by the plaintiff under the provisions of the Administrative Appeals Act.
2. However, according to Article 27-3 (2) of the Labor Standards Act and Article 40 (2) of the Trade Union Act, a Labor Relations Commission's procedures for administrative remedy against unfavorable dismissal, etc. which has no justifiable reason for workers under Article 27-3 (1) of the Labor Standards Act aim at preventing harm such as decentralization of litigation procedures, delay of procedures, excessive burden of expenses, etc. through civil procedure, and promoting prompt, simple, economic and flexible relief. As such, a request for remedy against unfavorable disposition, such as dismissal, etc. which has no justifiable reason for the employer's work as a prompt and simple administrative remedy procedure, shall be filed within 3 months from the date of the act (the date of termination of the act). As such, since the period of request for remedy is the exclusion period, the right to apply for administrative remedy upon the expiration of the period shall be extinguished (see Supreme Court Decision 95Nu1238, Aug. 23, 196).
Therefore, under the factual basis as decided by the court below, the starting point of the period of the request for remedy against the Labor Relations Commission pursuant to Article 27-3 (1) of the Labor Standards Act shall be November 17, 1994, which is the day following the day when the plaintiff received the notification of removal. Therefore, the plaintiff's request for remedy of this case is unlawful because it is obvious that the right to request remedy has been extinguished after the expiration of the period of the period of the request for remedy from the legal counsel, and the conclusion does not vary because there are circumstances in the decision of the court below. Thus, the court below erred by misapprehending the legal principles as to the period of the request for remedy under Article 27-3 (2) of the Labor Standards Act and Article 40 (2) of the Trade Union Act which applies mutatis mutandis under Article 27-3 (2) of the Labor Standards Act and Article 18
3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Chocheon-sung (Presiding Justice)