2017Guhap8170 Revocation of a ruling for review of unfair personnel and remedies for unfair suspension

A Stock Company

The Chairman of the National Labor Relations Commission

B

May 25, 2018

July 6, 2018

1. On October 27, 2017, the Central Labor Relations Commission rendered a revocation of the decision on review as to the application for review of unfair personnel and unfair suspension from office among the Plaintiff and the Intervenor joining the Defendant.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

A. The Plaintiff is a company established on March 27, 2013 and engaged in the repair business, etc. of home appliances produced by C Co., Ltd. (hereinafter “C”) with approximately 60 full-time workers.

B. On April 1, 2013, the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) was issued a personnel order as a repair engineer of the household appliances in office on April 11, 2017 while serving as the repair engineer of the household appliances in office on the part of the Plaintiff on April 1, 2013, and served as the repair engineer of the household appliances in office from April 14, 2017 as the repair engineer of the household appliances in office (hereinafter referred to as the “instant personnel order”).

C. On May 25, 2017, the Plaintiff opened a personnel committee and made a decision of 24 days of suspension from office on the grounds that the Intervenor was absent from office on May 2, 2017 and on April 2, 2017, and notified the Intervenor of the 24 days disciplinary decision of suspension from office on May 26, 2017 (hereinafter “instant disciplinary decision”). The Intervenor appealed against the decision and filed an application for reexamination with the Plaintiff on June 5, 2017, but the Plaintiff decided to maintain the instant disciplinary action on June 7, 2017, and notified the Intervenor of the result thereof on the same day.

D. On June 9, 2017, the Intervenor asserted that the instant personnel order and the instant disciplinary measure constituted unfair personnel management and unfair disciplinary action, and applied for remedy to the Busan Regional Labor Relations Commission. On August 3, 2017, the Gyeongbuk Regional Labor Relations Commission accepted the request for remedy of unfair personnel management and unfair disciplinary action on the ground that “The instant personnel order was an unfair personnel management order, which is considerably unfavorable to the Intervenor’s livelihood compared to his/her business necessity, and was sufficiently required under the good faith principle, and it is difficult to deem that the instant personnel management order was issued. In addition, even though the instant disciplinary measure is recognized, even though the Intervenor was requested to use his/her annual leave on May 2, 2017 and the 4th of the same month to the Plaintiff, the Plaintiff refused the request for leave without justifiable grounds and was absent from office, and thus, it constitutes an unfair disciplinary action due to the excessive disciplinary action (hereinafter referred to as “the first inquiry court”).

E. The Plaintiff appealed and filed an application for reexamination on August 8, 2017, 2017, but the National Labor Relations Commission rendered a decision dismissing the Plaintiff’s application for reexamination on October 27, 2017 on the same ground as the instant initial inquiry court (hereinafter “the instant decision on reexamination”).

[Reasons for Recognition] Unsatisfy, entry of Gap's evidence 1 to 3, 7 through 11, and the purport of whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

1) The legitimacy of the instant personnel order

A) While reducing the production of small household appliances in C and concentrating them in the production of large household appliances, there are many cases where the Intervenor directly visits and repairs the place where the household appliances are installed. Accordingly, rather than the repair engineer of household appliances in the inner office, the repair engineer of household appliances in the outer office was required, and the Intervenor was issued a personnel order as the repair engineer of household appliances in the outer office according to these occupational needs. Furthermore, compared with the physical conditions and work experience of the repair engineer of household appliances in the internal office working in the Plaintiff company, the Intervenor had the most suitable conditions for the Intervenor to serve as the repair engineer of household appliances in the outer office.

B) The Plaintiff does not reduce the Intervenor’s salary compared to the existing salary solely on the ground that the Plaintiff paid the “basic salary and the additional allowances according to the number of repairs as monthly salary,” thereby serving in the outside position. Accordingly, the Intervenor’s salary does not have any substantial disadvantage in the Intervenor’s life due to the instant personnel order.

C) Considering these circumstances, the instant order of personnel management is justifiable.

2) The legitimacy of the instant disciplinary action

A) The Defendant determined that “the Intervenor applied for the annual leave on May 2, 2017 for the treatment of the Intervenor’s parent-child hospital,” without considering it, although the Plaintiff explained in the Personnel Committee, the Intervenor determined the amount of disciplinary action without considering it. However, there is no evidence to deem that the Intervenor applied for the annual leave for the treatment of the parent-child hospital.

B) In addition, at the time of the Intervenor’s application for annual leave on May 4, 2017, the Intervenor had already applied for annual leave on the same day, and the demand for repair was extended on the next day due to the characteristics of the household appliances repair work. As such, there was a reasonable reason to restrict the use of annual leave by the repair engineers of household appliances in the external work.

C) Furthermore, according to the Plaintiff’s rules of employment, a person who was absent without permission at least twice a month is in principle subject to suspension from office.

D) Considering such circumstances, the instant disciplinary action cannot be deemed to be excessive.

B. Relevant statutes and the Plaintiff’s provision

It is as shown in the attached Form.

(c) Fact of recognition;

1) The terms of employment contract between the Plaintiff and the Intervenor

A) On April 1, 2013, the Plaintiff and the Intervenor entered into a labor contract and drafted a labor contract (Evidence B No. 1) into, and entered into a labor contract into on April 1, 2013; the type of work in the above labor contract is referred to as a "in-house worker; the place of work is referred to as a "in-house D; the date of work is referred to as a "six days; the monthly wage is referred to as a "in-house 4,860 won and performance rate; and the matters not specified in this contract are in accordance with the rules of employment, the Labor Standards Act and other general practices."

B) On April 1, 2013, the Plaintiff and E entered into a labor contract (Evidence A 16) and drafted a labor contract. The type of occupation in the above labor contract is indicated as “outstanding workers,” and only the working hours are somewhat different from the content of the labor contract between the Plaintiff and the Intervenor.

2) Circumstances, etc. of the instant personnel order

A) The repair engineer of household appliances belonging to the Plaintiff directly visits and repairs at the location where large-scale household appliances are installed, such as air conditioners, washing machines, and air conditioners, and the repair engineer of household appliances belonging to the Plaintiff is in charge of repairing small-sized household appliances directly brought by the customer to the Plaintiff’s branch. The repair engineer of household appliances belonging to the Plaintiff is also in charge of performing the repair work of a small-scale household appliances directly brought to the Plaintiff branch. In other cases where the above E, which entered into an employment contract as a repair engineer of household appliances, has changed the repair work of a mobile phone while performing the repair work of a mobile phone while performing the repair work of a mobile phone, and there were many cases where the repair engineer changes the repair work itself (referring to the copy of the personnel movement list).

B) At the time of September 2016, 2016, there was 26 repair workers employed by the Plaintiff, but at the time of March 2017, the number of repair workers employed by the Plaintiff was reduced to 20. Furthermore, the Plaintiff received a warning three times from C on the ground that the level of service quality (such as the completion rate on the day of repair work) of repair workers employed by the Plaintiff from April 2016 to October 2016 falls short of the minimum target.

C) Meanwhile, from October 2016 to April 2017, the number of repair works for home appliances in office belonging to the Plaintiff is as follows. The number of repair works for home appliances in office (1,127 items) on April 2017 reduced to half compared to the number of repair works (2,269 items) on April 2013.

A person shall be appointed.

A person shall be appointed.

D) On March 31, 2017, an internal director F, the representative of the Plaintiff, had an interview with the Intervenor to take personnel transfer to a repair engineer of household appliances in the extra-permanent position. The main recording is as follows.

F. At the same time, I will come up with the position that the number of participants would be reduced, and I would like to come up with 14% more than that of the three years, and I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to see I would like to see that I would like to see that I would like to see I would like to see that I would like to see that I would like to see that I would like to see that I would like to see that I would like to know.

F. Accordingly, if so, it is appropriate for the Director B (the Intervenor) to judge whether it is the most suitable in three persons (G, H, and the Intervenor) and therefore, how it is her fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly fly f. f. f. f. f. f. f. If the average wage of f. f. f. f. f.oly f. f. f. fly f. f., f. f. f. f. f.

E) After completing the above interview, the Plaintiff transferred the Intervenor’s personnel management to the repair engineer of the household work, through the instant personnel order.

F) On June 1, 2017, the Plaintiff, after the instant personnel order, announced the job offers to the staff in charge of the installation and repair of household appliances (the staff in charge of repair of household appliances).

3) The Intervenor’s salary details, etc. before and after the instant personnel appointment order

A) The monthly average salary of the Intervenor from April 2016 to March 2017, 2017, which was the date of the instant personnel order, is KRW 2,901,675, and the monthly average salary of the non-permanent repair engineer employed by the Plaintiff during the same period is KRW 2,701,643, and the monthly average salary of the non-permanent repair engineer employed by the Plaintiff during the same period is KRW 5,655,625, and the monthly average salary is KRW 1,705,348.

B) The monthly salary of the Intervenor on July 2017 is KRW 2,116,50. However, due to the instant disciplinary action, strike, etc., the number of the Intervenor’s actual working days was limited to 16 days.

4) Circumstances, etc. of the instant disciplinary action

A) The Intervenor used the annual leave of five days in total until April 2017, and in particular, January 11, 2017, the Intervenor used the annual leave of five days on the grounds of the parent-child hospital inspection. On April 26, 2017, the Intervenor drafted and submitted an annual leave of five days to the Plaintiff non-resident work team I on May 26, 2017 and on May 4, 2017, and the reasons for the annual leave of five days on May 2, 2017 were written on the individual circumstances, and on May 4, 2017 on the anniversary of the annual leave of five days. The head of the external work team rejected the Intervenor’s annual leave of five days on the grounds that the annual leave of five days was anticipated to have the annual leave of absence.

B) On April 28, 2017, the J applied for a annual leave on May 4, 2017 due to the reasons of the dial condition of the work site repair engineer who belongs to the Plaintiff, and obtained approval from the Plaintiff (the date of annual leave from J in 2016 to the time of the above annual leave application). The date of annual leave from J in 2016 to the time of the above annual leave is only one day), and the K also applied for the annual leave on May 4, 2017 for the medical treatment of the son’s Seoul Hospital, and obtained approval from the Plaintiff.

On the other hand, L, a repair engineer, applied for a annual leave on May 4, 2017 on the grounds of family travel on April 28, 2017, but the head of the external work team I already used the annual leave on May 4, 2017 due to the inevitable circumstances of J and K, which is expected to have a large amount of work due to the annual leave on the grounds that he/she is expected to return the above L, the application for annual leave of absence.

C) The Intervenor was absent from office on May 2, 2017 without any particular report to the superior. The Intervenor did not respond to the Intervenor’s phone and text messages to the Intervenor at all. The Intervenor did not work on May 4, 2017, but worked only on May 8, 2017.

D) In order to take disciplinary action against the intervenor, the plaintiff held a personnel committee on May 25, 2017. The intervenor attended the personnel committee and stated that he/she applied for annual leave on May 2, 2017 to Seoul due to his/her mother’s surgery. The plaintiff's personnel committee decided to take a disciplinary measure of suspension from office 24 days to take into account the three-month level of suspension from office, but to take into account the labor-management harmony, organizational stability and work from July 201. The plaintiff was subject to the disciplinary measure of this case according to the above disciplinary decision.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 5, 7, 14 through 17, 21, 24, 26 through 28, 32, 35 through 39, Eul evidence Nos. 1 and 6 (including Serial Numbers);

The purport of all pleadings

D. Determination

1) Whether the instant personnel order is justifiable

A) Relevant legal principles

A disposition of change of occupation or transfer of a worker may be disadvantageously imposed on a worker in that it brings about changes in the type of work to be provided by the worker. However, in principle, it belongs to the authority of the employer who is the personnel authority, and thus, within the necessary scope of business, it shall not be deemed null and void unless there are special circumstances, such as violation of the Labor Standards Act or abuse of rights. Provided, That in cases where the labor contract specifically limits the contents or place of work, the employer must, in principle, consent of the worker

Whether a previous disposition, etc. falls within the scope of legitimate personnel rights shall be determined by comparing and comparing the business necessity of the relevant previous disposition, etc. and the disadvantage of workers in their daily life due to the previous change of occupation, and whether the worker had gone through the procedure required under the good faith principle in the course of performing the previous disposition, such as consultation with the labor union to which the worker belongs (where there is no labor union, the worker himself/herself). If the disadvantage in his/her daily life due to the change of occupation, etc. due to the need for his/her occupation does not significantly deviate from the degree that the worker should normally bear, it is within the scope of legitimate personnel rights and does not constitute an abuse of rights. Furthermore, it refers to the rationality of the selection of the number of workers who need to change the number of workers and should include any change of workers, which includes such circumstances as promotion of work efficiency, maintenance or recovery of work order, and humanization between the workers (see, e.g., Supreme Court Decision 2010Da52041, Feb. 28, 2013).

B) Determination

Based on the above legal principles, the above facts and the above facts are examined. In full view of the following circumstances known by comprehensively taking into account the purport of the entire arguments, since the instant personnel order deviates from discretion on personnel affairs recognized by the Plaintiff or cannot be deemed illegal as it constitutes an abuse of rights. Thus, the prior review ruling on a different premise is unlawful.

(1) It is recognized that the Intervenor entered into an employment contract with the Plaintiff with the Plaintiff as an in-service worker.

However, there is no explicit provision to the effect that the above employment contract does not change the category of work, and the above employment contract provides that "matters not specified in this contract shall be governed by the rules of employment, the Labor Standards Act and other general practices," and Article 54 of the Rules of Employment of the plaintiff provides that "the company may, if necessary, order the conversion of the placement, transfer of work, etc. of the members, and the members shall not raise an objection against this order without any justifiable reason." Although E entered into an employment contract with the plaintiff as an out-of-the-job job, there is no difference between the plaintiff and the intervenor in specific terms and conditions of the employment contract, such as the place of work, monthly pay, etc., but E is also engaged in the transfer of personnel to the repair engineer of the household goods, it is difficult to view that the agreement between the plaintiff and the intervenor is required to obtain the consent of the intervenor in order for the plaintiff to transfer or transfer to another participant.

(2) The number of repairs of household appliances in services is gradually decreasing. Around 2016, the level of quality of repair services (such as the completion rate of repair services on the day of the repair services) of repair engineers in services in services in the outsourcing was received warnings from C three times on the ground that the level of quality of repair services (such as the completion rate of repair services) falls short of the minimum target value. Notwithstanding the decrease in the number of repair engineers in services in services in the outsourcing, the Plaintiff, who was difficult to employ the repair engineers in services, is deemed to have been considerably needed to transfer the repair engineers in services to the repair engineers in services in the outsourcing.

(3) In addition, considering the following circumstances, it is difficult to deem that the disadvantages of life following the instant personnel order were significantly exceeded the level of the employee would normally have to be borne by the employee.

(1) Even if the type of the household appliances that the intervenor must repair as the repair engineer for the household appliances in services, and the method of performing his/her duties, are somewhat different from that of the time when the intervenor works as the repair engineer for the household appliances in services, the intervenor's repair work for the household appliances is not more than 20 years. Since the replacement of the repair engineer for the household appliances in itself does not change the duties of the repair engineer for the household appliances in services, it is difficult for the intervenor to adapt to the duties of the repair engineer for the household appliances in services.

② On the other hand, the monthly salary for July 2017, which was after the Intervenor transferred to a repair engineer of the household appliances in services, seems to have significantly decreased. However, due to the instant disciplinary action and strike, the Intervenor’s actual number of working days at the time of July 2017 was merely 16 days, and the performance rate is additionally paid according to the number of repairs based on the same basic level as both the external and internal employment, and there is no significant difference between the monthly average wage of the repair engineer of the household appliances in services in the services in the services, and the monthly average wage at the time of the Intervenor’s service as the repair engineer of the household appliances in the services in the services in the services in the domestic service. In light of the fact that there is room for the Intervenor to receive monthly salary for more amount than the time of his/her service as the repair engineer of the household appliances in the services in the domestic service with the efforts of the Intervenor, the instant personnel order cannot be concluded that the Intervenor’s economic loss is reasonable.

③ In addition, due to the instant personnel order, there is no need to move the Intervenor’s living base, and there is no big difference in working hours, it is deemed that the Intervenor’s living method will not be significantly different from the existing one.

(4) The Plaintiff, among the repair engineers of home appliances in the internal office, excluded G with poor physical size from the short repair experience of home appliances and decided to transfer the Intervenor to the repair engineer of home appliances in the external office. The Plaintiff’s personnel appointment standard is not reasonable. In addition, during the instant personnel assignment process, the Plaintiff’s internal directorF directly explained the necessity of personnel movement and the criteria for the selection thereof to the Intervenor, and made efforts to obtain the Intervenor’s consent.

2) Determination on a disciplinary action of the instant case

A) Relevant legal principles

In a case where a disciplinary measure is taken against a person subject to disciplinary action at the discretion of the person having authority to take the disciplinary measure, the disciplinary measure is unlawful only when it is deemed that the person having authority to take the disciplinary measure has abused the discretion vested in the person having authority to take the disciplinary measure because the person having authority to take the disciplinary measure has considerably lost validity under the social norms. If a disciplinary measure is deemed to be an unlawful measure beyond the scope of discretionary power, depending on the specific cases, the contents and nature of the offense, which is the cause of the disciplinary measure, should be determined in full view of various factors, such as the purpose to achieve the disciplinary measure, the criteria for a disciplinary measure, etc. (see, e.g., Supreme Court Decisions 200Da60890, 60906, Aug. 23, 2002; 2013Du26750, Mar. 15, 2017);

B) Determination

Based on the above legal principles, comprehensively taking account of the above facts and the whole purport of the arguments, the disciplinary action in this case is excessively harsh compared to the contents and degree of the intervenor's misconduct, and it is difficult to view that the disciplinary action in this case deviates from or abused the discretion assigned to the person having authority over disciplinary action. Thus, the judgment of review in this case is unlawful on a different premise.

(1) An intervenor was absent from office for at least two days in one month, and according to Article 93 subparag. 8 of the Rules of Employment of the Plaintiff, this constitutes a ground for suspension from office. According to Article 90 subparag. 3 of the Rules of Employment, a disposition of suspension from office for a maximum of six months may be taken, but the Plaintiff was subject to suspension from office for 24 days in consideration of

(2) In the instant review decision, the Defendant rendered the instant disciplinary action without considering the fact that the Intervenor applied for the annual leave on May 2, 2017 for the treatment of the parent-child hospital, despite the Plaintiff’s explanation by the personnel committee, and determined that the instant disciplinary action was excessive on the grounds that the Plaintiff rejected the Intervenor’s application for the annual leave on May 4, 2017, while the Plaintiff rejected the Intervenor’s application for the annual leave on May 4, 2017.

However, considering the following, it is difficult to accept the above decision of the defendant.

(1) Even according to the details of the medical treatment of the intervenor's mother submitted by the intervenor, the intervenor's mother and child.

No hospital was provided on May 2, 2017. Moreover, in light of the fact that the Intervenor entered the hospital’s medical treatment on the grounds of leave and applied for annual leave on January 11, 2017, the individual circumstance was stated on the grounds of the annual leave on May 2, 2017, it is not deemed that the Intervenor applied for the annual leave on May 2, 2017 for the treatment of her mother-child hospital.

② Article 29(3) of the Rules of Employment of the Plaintiff stipulates that when it is anticipated that the performance of duties will be hindered or that the performance of duties is anticipated, the time of leave shall be revised. The Plaintiff is anticipated to rapidly increase the request for repair of home appliances on May 2, 2017 and on May 4, 2017, the period of leave of absence, and thus, to restrict the implementation of annual leave of absence for the said period.

Accordingly, in the case of annual leave on May 4, 2017, the Plaintiff approved the use of annual leave only to an external repair worker in extenuating circumstances, and in addition to the Intervenor, the Plaintiff also applied for annual leave on May 4, 2017 and was returned.

③ Therefore, in extenuating circumstances where the Intervenor’s annual leave on May 2, 2017 and on May 4, 2017 are not required to use the Intervenor’s annual leave, the Plaintiff’s return to the Intervenor’s annual leave application for smooth performance of his/her duties is difficult to be assessed as an unfair act.

(3) On May 2, 2017, the Intervenor did not work without permission on each of the above dates despite the return of the application for annual leave on May 2, 2017 and on the 4th of the same month, and did not receive all contact points on the Plaintiff’s side. Despite the fact that the Intervenor was absent from work without permission for two days, the Plaintiff appears to have suffered a big difficulty in performing his/her duties.

(4) As seen earlier, even if the Intervenor did not make an annual leave application on May 2, 2017 for the treatment of her mother-child hospital, the Plaintiff’s personnel committee made a false vindication.

E. Sub-committee

Therefore, despite the fact that the issuance of the instant personnel order and the instant disciplinary action against the Intervenor are legitimate, the prior review ruling should be revoked on a different premise.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

Judge Park Jong-young

Judges Eslives

Judges Kang Jae-sung

1) There is no particular dispute between the parties as to the existence of the grounds for disciplinary action of this case, and thus, only the adequacy of the disciplinary action of this case should be examined.

A person shall be appointed.