2015Guhap424 Revocation of Disposition of Imposing a non-performance penalty

A Stock Company

Seoul Regional Labor Relations Commission

March 26, 2015

May 14, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s decision to impose enforcement fines of KRW 8,100,000 against the Plaintiff on December 8, 2014 is revoked.

1. Details of the disposition;

A. On January 21, 2014, the Plaintiff dismissed B, who is the Plaintiff’s employee. On February 5, 2014, B filed an application for unfair dismissal with the Defendant on February 5, 2014. On March 27, 2014, the Defendant recognized that the above dismissal was unfair dismissal, and determined that “B was immediately reinstated to the Plaintiff and paid the amount equivalent to wages that could have been normally worked during the period of dismissal” (hereinafter referred to as “instant order for remedy”). On April 24, 2014, the Plaintiff filed an application for reexamination with the National Labor Relations Commission, but the National Labor Relations Commission rendered a ruling dismissing the Plaintiff’s above application for dismissal (hereinafter referred to as “instant order for remedy”). On June 27, 2014, the Defendant still did not implement the instant order for remedy and imposed a non-performance penalty on the Plaintiff on the Plaintiff (hereinafter referred to as “the instant order for enforcement penalty”). The Defendant still did not implement the order for remedy on 10th, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 3, 4, Eul evidence 1, 4, Eul evidence 5-1, 5-2, and the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) B visited a company at least 3 hours prior to the commencement of work, to assault a workplace employee’s commercial injury, thereby interfering with the business of 4 weeks, and interfered with the said female employees by verbal abuse, and ② was absent from work without permission due to the foregoing drinking act, and ③ was absent from work without permission due to the violation of the rules of employment. In light of this, it is justifiable for the Plaintiff to dismiss B on the ground that it is no longer possible to maintain employment relationship with B, and thus, it is unreasonable to impose a non-performance penalty on the ground that the dismissal did not comply with the instant remedy order issued under the erroneous determination that the dismissal was unfair.

2) The Plaintiff filed a revocation suit with respect to the instant decision on reexamination, and the present argument is in progress. It is unlawful to impose a non-performance penalty under the circumstances in which the pleading is in progress.

B. Determination

1) Comprehensively taking account of the purport of the Plaintiff’s evidence No. 1 and the entire argument, B: (a) was punished by a conflict with other employees at the Plaintiff’s office on January 10, 2014; and (b) was injured by C; and (c) was found that B did not have any other career in the curriculum prepared at the time of being employed as an employee of the Plaintiff; (b) was aware of the entire purport of the pleading in the statement No. 1; (c) in the following circumstances, B, in the process of asking about whether to increase the benefits, was physically fighting with C and would have suffered injury as above; (d) in light of the fact that there is no evidence to deem that the aforementioned career experience not entered in the resume as above was significant to affect the conclusion of the employment contract between the Plaintiff and B; and (e) there is no reason to view that there is no other reason to acknowledge the employment relationship between the Plaintiff and B. Therefore, the Plaintiff’s allegation in this part of the Plaintiff’s assertion is without merit.

2) According to Article 32 of the Labor Standards Act, a remedy order issued by the Labor Relations Commission does not suspend its validity upon a request for reexamination or an administrative litigation against the National Labor Relations Commission. Therefore, even if the Plaintiff filed a revocation lawsuit against the instant decision on reexamination and the pleading is underway, the instant remedy order, irrespective of its validity, may be imposed on a non-performance penalty pursuant to Article 33(1) of the Labor Standards Act in the event that the Plaintiff fails to comply with the instant order by demonstrating its validity. Accordingly,

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The presiding judge, judges and vice-ranking

Judges Kim Yong-han

Judges Seo-chul