[1] Where a collective agreement provides for prior agreement of dismissal, the validity of dismissal without going through the procedure (negative)

[2] In a case where a trade union is deemed to abuse the right of prior consent under the provisions of the collective agreement or waive the right of prior consent, whether the employer may exercise the right of dismissal without the trade union’s consent (affirmative), and the requirements to constitute abuse of the right of prior consent

[3] The case holding that it is not clear that the grounds for disciplinary action against the chairman of the labor union which led the strike fall under the grounds for dismissal, and that the labor union cannot be deemed to have rejected dismissal on the sole ground of the pre-agreement provisions, and it cannot be concluded that the labor union abused the pre-agreement provisions

[1] Article 30(1) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) prohibits dismissal as a matter of principle by stipulating that “an employer shall not dismiss a worker without any justifiable reason.” However, in exceptional cases where there are justifiable grounds, the employer is allowed to dismiss a worker only within a limited extent, and the employer is allowed to dismiss a worker. If the employer agreed to limit the right of dismissal through negotiations between labor and management and the labor union agreed to exercise the right of dismissal only when the labor union consented to do so, a prior agreement of dismissal without such procedures is null and void in principle.

[2] Even if a collective agreement provides for the prior agreement of dismissal, a trade union is not entitled to exercise the right of dismissal only with the consent of the trade union, regardless of the employer's right of dismissal, and where the trade union is deemed to abuse the right of prior consent or waive the right of prior consent, it is possible to exercise the right of dismissal of the employer even without the consent of the trade union. However, a trade union's abuse of the right of prior consent should not be determined that the trade union's exercise of the right of prior consent is against dismissal by abusing the right of prior consent, if the trade union has committed a serious act of distribution on the part of the trade union, thereby causing a defect in the employer's procedure, or if the disciplinary action is caused directly and indirectly by a serious illegal act to the company which is the employer, and even if the company has made efforts to faithfully and faithfully to reach a prior agreement with the trade union, it is objectively clear that it constitutes grounds for disciplinary action, and even if it has made efforts to do so, it cannot be concluded that the trade union has abused

[3] The case holding that it cannot be concluded that a trade union abused the prior consent right on the ground that the grounds for dismissal of the chairperson of the trade union which led the strike do not constitute an obvious time of dismissal, and that the trade union did not object to dismissal on the sole ground of the prior agreement provisions

[1] Article 30 (1) (see current Article 23 (1)) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) / [2] Article 30 (1) (see current Article 23 (1)) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) / [3] Article 30 (1) (see current Article 23 (1)) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007)

[1] [2] Supreme Court Decision 92Da50263 delivered on July 13, 1993 (Gong1993Ha, 2257), Supreme Court Decision 2001Du3136 delivered on June 10, 2003 (Gong2003Ha, 1537) / [1] Supreme Court Decision 93Da5017 delivered on September 13, 1994 (Gong1994Ha, 2627) / [2] Supreme Court Decision 2003Du10978 delivered on March 11, 2004

Plaintiff (Law Firm Shin & Yang, Attorneys Yellow-dilution et al., Counsel for the plaintiff-appellant)

The Chairperson of the National Labor Relations Commission

Intervenor (Attorney Kim Young-deok et al., Counsel for the intervenor-appellant)

Seoul High Court Decision 2004Nu21762 Delivered on June 22, 2005

The judgment below is reversed and the case is remanded to Seoul High Court.

Article 30(1) of the former Labor Standards Act (amended by Act No. 8372 of Apr. 11, 2007) provides that “an employer shall not dismiss workers without justifiable cause” (see current Article 23) prohibits dismissal in principle. However, in exceptional cases where there are justifiable grounds, the employer’s right of dismissal is recognized only to the extent limited by allowing dismissal. If the employer agreed to restrict the right of dismissal through negotiations between the labor and the union and agreed to exercise the right of dismissal only when the labor union consented to do so, a disposition of dismissal without following such procedures should, in principle, be deemed null and void (see, e.g., Supreme Court Decisions 92Da50263, Jul. 13, 1993; 93Da5017, Sept. 13, 1994).

According to the records, such as evidence that the lower court did not lawfully rejected the disciplinary action against the Intervenor. Article 35(1) of the collective agreement between the Plaintiff Company and the trade union at the time of dismissal provides that “The Company shall agree with the union in advance with respect to dismissal, disciplinary action, and movement of union officers.” As to the ground for dismissal, Article 40 of the collective agreement provides that “the Company shall not be ordered to dismiss the Intervenor unless it falls under any of the following subparagraphs.” From January to 6, 7) to the date following the personnel committee’s resolution, it is difficult for the Intervenor to take disciplinary action against the Intervenor who did not suffer damage or damage to property by intention or gross negligence during the period of 0-year period from the date of dismissal to January 26, 2007.” The Intervenor was not subject to disciplinary action against the Intervenor on March 3, 2003, and thus, it is difficult for the Intervenor to take into account the effect of disciplinary action against the Intervenor on his part, including the Nonparty’s disciplinary action against the Plaintiff’s labor union.

In addition, according to the records, the following circumstances, i.e., ① the obstruction of business among the grounds for the dismissal of the instant disciplinary action, upon the conclusion of the strike, the Plaintiff voluntarily withdrawn a criminal complaint in accordance with the labor-management agreement, but the Intervenor was sentenced to a fine in criminal proceedings after having been indicted for the obstruction of business. The remaining grounds for the disciplinary action excluding this were all the acts of violence, intimidation, confinement, and defamation of the officers and employees who were punished during the strike, sexual harassment against the members of telephone counsel, destruction, damage, sales loss, corporate honorary situation of the company, and other illegal acts, which exceed a certain limit permitted by the Act. However, the damages alleged to be suffered by the Plaintiff Company cannot be deemed as damages arising from the refusal of collective bargaining consultation, which can only be held liable to the labor union side, and the damages arising from direct damages arising from the deviation and destruction of the industrial action beyond the above 20-year period are deemed as acts of labor-management and labor-management in light of the size and scale of the industrial action in this case, and the amount of damages arising from the strike and termination of the labor-management.

In full view of the essential contents of the industrial action in this case known as such, the details and degree of the act of deviation arising during the process, the nature and degree of the act of deviation arising from the industrial action, the nature of the labor and management from the completion of the industrial action to the time of the instant disciplinary action, the considerable period of time from the completion of the industrial action to the time of the instant disciplinary action, the trade union’s grounds for objection to the dismissal of the Intervenor, etc., it is difficult to deem that in the case of the Intervenor, it is evident that the grounds for dismissal of the Intervenor would be serious, and the trade union may not be deemed to have voluntarily opposed to the dismissal of the Intervenor on the sole ground of the prior agreement clause in the collective agreement. Therefore, it cannot be concluded

Nevertheless, the court below, citing the judgment of the court of first instance, determined that the intervenor's act constitutes grounds for disciplinary action, and determined that there is no reasonable ground to oppose the disciplinary action against the trade union, even though the intervenor's act constitutes grounds for disciplinary action, and that the above trade union abused the prior consent right to dismiss the intervenor. In such a case, the court below erred by misapprehending the legal principles on interpretation and application of prior consent right to dismiss union members or union executives as prescribed in the collective agreement, which affected the conclusion of the judgment. The ground for appeal pointing this out has merit.

Therefore, the judgment of the court below is reversed without further review as to other grounds of appeal, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)