[2] The purpose of Article 31(3) of the Labor Standards Act, which provides for a faithful consultation with a labor union or workers’ representative, as a procedural requirement for layoff, and whether the above consultation satisfies the above procedural requirement where the other party to the consultation can be recognized as a representative who can reflect the intent of the worker even if he/she fails to clearly meet the qualification as a representative of a majority of workers in a formal manner (affirmative)

[3] The purpose of Article 31-2 of the Labor Standards Act which provides for the employer's preferential efforts for employment as a dismissed person, and in case where a dismissed person fails to meet the position to be newly employed and employs other workers, whether the employer's preferential efforts for employment as a dismissed person violates (negative)

[2] Article 31(3) of the Labor Standards Act provides that the employer shall inform in advance and faithfully consult about the method of avoiding dismissal and the criteria for dismissal to the labor union organized by the majority of workers at the business or workplace, and that if there is no labor union organized by the majority of workers, the person representing the majority of workers (representative of workers) shall be the one which guarantees the actual requirements for layoff as stipulated in paragraphs 1 and 2 of the same Article, and that it is desirable to implement it in mutual understanding through the process of consultation even if it is inevitable. Thus, in a case where there is no labor union organized by the majority of workers, if there is any circumstance that the other party to the consultation is not formally equipped with the qualification of the majority of workers, it shall be deemed that the above procedural requirements are satisfied.

[3] Article 31-2 of the Labor Standards Act provides that when an employer who is dismissed intends to employ a worker within two years from the date of the dismissal, he/she shall endeavor to preferentially employ the worker, taking into account the position before the dismissal, if the worker so wishes. This does not impose any legal obligation that the employer should preferentially re-employment the dismissed worker if there is an opportunity to be newly employed, but it is merely the purport that the employer should endeavor to preferentially employ the dismissed person who is suitable for the position to be newly employed. Thus, unless there is any circumstance to deem that the employer is a person who is suitable for the position to be newly employed, it shall not be deemed that the employer violated the above preferential employment obligation under the Labor Standards Act even if the employer has employed another worker by his/her reasonable business judgment

1. Regarding ground of appeal No. 1

A. As to the substantial requirements for layoff

Pursuant to Article 31(1) through (3) of the Labor Standards Act, where an employer intends to dismiss a worker for managerial reasons, there must be an urgent administrative necessity, and efforts shall be made to avoid dismissal, and persons subject to dismissal shall be selected in accordance with reasonable and fair standards, and the methods and criteria for avoiding dismissal shall be faithfully consulted with the labor union organized by a majority of workers or the representative of workers. The detailed contents of each of the above requirements are not conclusive and fixed but flexiblely determined for the degree of fulfillment of other requirements in specific cases. Thus, whether the relevant dismissal by managerial reasons satisfies all of the above requirements should be determined by comprehensively taking into account individual circumstances that constitute the above requirements (see Supreme Court Decisions 200Du9373, Jul. 9, 2002; 2001Da29452, Jul. 9, 2002).

The judgment of the court of first instance, as cited by the court below, acknowledged the facts as stated in its decision after compiling the adopted evidence, and judged that the defendant company, who operated the construction sector independently from the shipbuilding division, has been unable to survive due to the aggravation of business management due to cumulative personnel in the construction sector, failed to make self-help efforts such as sale of assets, but failed to do so, has reached the instant layoff through consultation with the labor union, and therefore, it did not have any urgent management necessity for layoffs against the plaintiff, made every effort to avoid layoffs, made every effort to select persons subject to layoffs by applying objective and reasonable standards. In light of the records, the court of first instance, as cited by the court below, is just and correct, and there is no violation of law by misapprehending the legal principles as to the judgment on the legitimacy of layoffs, or by misapprehending the facts.

B. Regarding procedural requirements for layoffs

Article 31(3) of the Labor Standards Act provides for the procedural requirements for layoffs by providing that a labor union consisting of more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than more than one than one more workers than more than one more than one more than one more than one more than one more workers.

The judgment of the first instance, as cited by the court below, acknowledged the facts in its decision after compiling the adopted evidence, and rejected the defendant's assertion that the defendant company failed to meet the procedural requirements for layoff, on the ground that the labor union in the construction sector and the reorganization dismissal had been conducted more than nine times after the deterioration of the management situation of the company, and that the defendant company conducted the reorganization dismissal without any specific opinion in accordance with the agreement drawn out. However, it cannot be deemed that the defendant company did not faithfully negotiate with employees solely on the ground that the labor union in the construction sector of the defendant company did not constitute a majority of workers.

According to the records, although the labor union in the field of construction of the defendant company was not organized by a majority of workers, the collective agreement concluded between the defendant company and the labor union after the establishment of the labor union in 1987 was also applied to all other workers of the defendant company that did not join the labor union and arranged the number of employees through consultation with the labor union when it is inevitable to reduce the number of employees in charge of management of the defendant company pursuant to Article 26 of the collective agreement. The defendant company's labor union has been in consultation with the labor union in nine times for the purpose of the reorganization in this case by gathering the opinions of the workers and presenting amendments to the reorganization and reducing the number of employees subject to the reorganization from 250 to 127. In this process, it cannot be seen that the number of employees who did not join the labor union is the representative of the labor union, and it is recognized that the representative of the labor union in consultation with the defendant company and the labor union is actually recognized.

Therefore, although this part of the reasoning of the court below is somewhat inappropriate, it is just to dismiss the plaintiff's claim on the ground that the reorganization dismissal in this case satisfies the procedural requirements, and it is not erroneous in the misapprehension of legal principles as to the assertion in the grounds of appeal and the legitimacy of the reorganization dismissal, which affected the conclusion

C. Therefore, we cannot accept all the arguments of the first ground for appeal.

2. Regarding ground of appeal No. 2

Article 31-2 of the Labor Standards Act provides that when an employer intends to employ a worker within two years from the date of the dismissal, he/she shall endeavor to preferentially employ the worker, taking into account the position before the dismissal, if the dismissed worker so desires. This does not impose any legal obligation that the employer should preferentially re-employment the dismissed worker if there is an opportunity for new employment, but it is merely a fact that the employer should endeavor to preferentially employ the dismissed worker if there is a person who is suitable for the position to be newly employed by the employer. Thus, unless there is any circumstance to deem that the dismissed person is a person suitable for the position to be newly employed by the employer, even if the employer has employed another worker by his/her reasonable business judgment, it shall not be deemed that the employer violated the above preferential employment obligation

In light of the records, the decision of the court below that the defendant company's new employment within 2 years after the dismissal of the plaintiff who was the director of the administrative office is not only new employees, but also only 3 of them is an administrative worker and it does not fit in light of the plaintiff's position and experience. Thus, even if the defendant company did not re-employed the plaintiff while employing new employees, the decision of the court below that the defendant company did not violate the duty of preferential employment pursuant to the above Labor Standards Act shall be justified in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles or in the misapprehension of legal principles as to the duty of preferential employment pursuant to the above Labor Standards Act.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Shin-chul (Presiding Justice)