[1] Requirements for an employer’s dismissal, etc. to constitute a tort

[2] Even if a disciplinary dismissal against a worker was determined null and void after the court, the case where there is no intentional or negligent act constituting tort liability shall be deemed to exist.

[3] Whether the employer’s rejection of unfair reinstatement constitutes a tort that infringes upon the worker’s personal legal interests (affirmative)

[1] In general, where an employer’s unfavorable disposition such as dismissal against workers is judged null and void due to a lack of legitimacy, it cannot be said that a unfavorable disposition such as dismissal promptly constitutes a tort due to such reasons. However, even though the employer did not have any grounds for disciplinary dismissal against workers, the employer is obligated to compensate for the worker’s mental suffering caused by tort if it is objectively evident that the fact of dismissal, etc. does not constitute a ground for disciplinary action as prescribed by the rules of employment, etc. or cannot be considered as a ground for disciplinary action, or if it is objectively evident that the fact of dismissal, etc. is objectively obvious that it does not constitute a ground for disciplinary action as prescribed by the rules of employment, etc. or cannot be considered as a ground for disciplinary action, etc., and even if it is possible to find it easily if it was caused by the employer’s intentional act or negligence against the unfair dismissal, it is also liable to compensate for the worker’s mental suffering caused thereby.

[2] Even if the determination of disciplinary action against workers was found to have deviates from or abused the discretionary power, and the disciplinary action is judged to be null and void due to abuse of the authority to impose disciplinary action, if it is merely a mistake in interpreting the relevant Acts and subordinate statutes, it shall not be deemed that there was a negligence by which the members of the disciplinary committee who erred in the determination of disciplinary action could be held liable for tort. Likewise, in light of the objective circumstances at the time of the disadvantage disposition such as dismissal of workers, the degree of the worker's misconduct, etc., and the circumstances leading up to the disadvantage disposition against workers, it shall not be deemed that it was unreasonable for the employer to determine that the employer's misconduct constitutes a disadvantageous disposition such as dismissal of workers, etc. under the rules of employment or collective agreement, and if the employer made the disadvantage disposition after going through the prescribed legitimate procedures, it shall be deemed that the employer fulfilled the duty of care to make the worker dismissed, etc., and even if the disadvantage disposition such as dismissal was judged null and void after the court, it shall not be deemed that there

[3] Barring special circumstances, an employer is obligated under the good faith principle to consider in order for an employee to realize his/her personality by promoting the development of the personality of the employee to the extent consistent with the exercise of his/her right to command and order work through the conclusion of an employment contract with the employee to the extent consistent with the exercise of his/her right to command and order work. Therefore, an employer’s continuous refusal of the provision of work against the employee’s will would infringe upon the employee’s personal legal interests and thus, an employer is obliged to compensate for mental suffering suffered by the employee.

[1] Article 27(1) of the Labor Standards Act, Article 750 of the Civil Act / [2] Article 27(1) of the Labor Standards Act, Article 750 of the Civil Act / [3] Articles 750 and 751 of the Civil Act

[1] [2] Supreme Court Decision 95Da11696 delivered on February 27, 1996 (Gong1996Sang, 1081) / [1] Supreme Court Decision 92Da43586 delivered on October 12, 1993 (Gong1993Ha, 3061), Supreme Court Decision 93Da11463 delivered on December 21, 1993 (Gong194Sang, 488), Supreme Court Decision 93Da43866 delivered on December 21, 1993 (Gong194Sang, 493) / [2] Supreme Court Decision 94Da2125 delivered on February 14, 195 (Gong195Sang, 1326) / [308Da19849 delivered on December 1985] Supreme Court Decision 198Da1983989 delivered on December 14, 1995

Plaintiff 1 and two others

Sam-Ba Co., Ltd. (Attorney O Byung-jin, Counsel for the defendant-appellant)

Seoul High Court Decision 94Na35291 delivered on December 23, 1994

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

We examine the grounds of appeal.

(1) Generally, in a case where an employer’s unfavorable disposition such as dismissal against workers is judged to be null and void due to such reason, it shall not immediately constitute a tort. However, even if the employer did not have any grounds for disciplinary dismissal against workers, it is objectively clear that the employer intentionally mobilized the means of disciplinary action on the ground of a certain reason for dismissal, etc. at the workplace, or that any fact caused by dismissal, etc. cannot constitute a ground for disciplinary action, such as the rules of employment, or cannot be considered as a ground for disciplinary action. Further, if the employer paid a full attention, it can easily be seen that there was a disadvantage such as disciplinary dismissal, etc., even if the employer did so, if the employer was found to have intentionally or negligently committed an unlawful act, it shall be deemed that the employer is liable to compensate for the mental distress of workers who suffered therefrom (see, e.g., Supreme Court Decisions 92Da43586, Oct. 12, 193; 193Da319639, Mar. 16, 1963).

However, even if the determination of disciplinary action against a worker is found to have deviates from or abused the discretionary power, and the disciplinary action is judged to be null and void due to abuse of the authority to take disciplinary action, if it is merely a mistake in interpreting the relevant laws and regulations concerning the seriousness of the disciplinary action, it shall not be deemed that there was a negligence by which a disciplinary commissioner who erred in the determination of the disciplinary action can be held liable for tort against the worker (see Supreme Court Decision 94Da22125 delivered on February 14, 1995). In addition, it is unreasonable to determine that the employer's misconduct, etc. was not a disadvantageous cause such as dismissal of workers under the rules of employment or collective agreement, in light of the objective circumstances at the time of the unfavorable disposition such as dismissal of workers, the degree of the worker's misconduct, etc., as well as the circumstances where the unfavorable disposition such as dismissal was made after the prescribed procedure, even if the dismissal was judged to be null and void after the court, it shall be deemed that the employer has fulfilled the duty of care to compensate for the worker.

According to the records, the defendant submitted the plaintiffs to the Disciplinary Committee on the ground that the plaintiffs led illegal strike from June 1, 1991 to June 9 of the same year, and lawfully notified the plaintiffs of the holding of the Disciplinary Committee according to the collective agreement provisions, etc., and made the plaintiffs' statements to the Disciplinary Committee held on July 11 of the same year as of the same day according to the above disciplinary committee's decision, and the disciplinary committee held on the 15th of the same month had filed a request for reexamination pursuant to the collective agreement of the defendant company, but it had confirmed that the above disciplinary action against the plaintiffs was legitimate, and the defendant's rejection of the defendant's promise to the above disciplinary action against the plaintiffs again was made on June 9, 191, the court of first instance rejected the defendant's allegation that the defendant's non-compliance with the above disciplinary action against the plaintiffs, including the above disciplinary action against the plaintiffs, for the first time of the same month until the 9th of the same month's rejection of the defendant's new disciplinary action against the plaintiffs.

Therefore, the dismissal of disciplinary action against the plaintiffs was originally justifiable and its procedure was lawful in accordance with the provisions of the collective agreement, etc. However, the meaning of the promise that the disciplinary committee members make the most tolerance in determining disciplinary action against the plaintiffs should be interpreted as erroneous and judged as null and void as a result of a mistake in the determination of disciplinary action, and it cannot be said that there was an intentional act or negligence by the disciplinary committee members who made a mistake in the determination of disciplinary action or the defendant's tort liability based on the decision.

Therefore, although the reasons stated by the court below are not appropriate, the conclusion that the disciplinary dismissal against the plaintiffs cannot constitute a tort is eventually justifiable, and therefore, the argument about this issue is without merit.

(2) An employee who continues to provide labor under a labor contract is of dignity and value as a human being and an employee’s provision of labor cannot be separated from his/her own personality in a labor relationship. Meanwhile, an employee’s provision of labor under a labor contract does not simply aim at acquiring wages, but rather is realizing his/her personality by promoting the development of personality through realizing his/her own child through his/her labor, maintaining and improving skills, and forming a smooth human relationship (see Supreme Court Decision 93Da11463, Dec. 21, 1993). Therefore, an employer is obliged to provide the employee with the duty of care to realize his/her personality through the provision of labor within the scope consistent with the exercise of his/her right to command and order to work through the conclusion of a labor contract, to the extent that it is consistent with the exercise of his/her right to command and order to work, and thus, the employer is obliged to provide the employee with compensation for his/her own personality against his/her own will without any justifiable reason (see Supreme Court Decision 98Da198397, Sept. 19, 19898).

According to the records, although the defendant's dismissal disposition against the plaintiffs became null and void, the defendant only pays the amount of money ordered to pay to the plaintiffs in that judgment, and refuses to provide labor to the plaintiffs without returning to the plaintiffs regardless of the plaintiffs' request for reinstatement. Thus, in this case where there is no proof that the defendant has special circumstances to refuse to provide labor, the defendant's refusal to provide labor to the plaintiffs, despite the plaintiffs' request for reinstatement, would infringe upon the plaintiffs' personal legal interests as seen above, and it is obvious that the defendant's refusal to provide labor would infringe upon the plaintiffs' personal legal interests as seen above. Accordingly, it is obvious in light of the empirical rule that the plaintiffs suffered considerable mental suffering.

Nevertheless, the court below rejected the plaintiffs' claim for consolation money due to the defendant's refusal of reinstatement on the grounds as stated in its reasoning does not err in the misapprehension of legal principles as to the establishment of tort due to the defendant's refusal of reinstatement, which affected the conclusion of the judgment, and in this regard, the judgment of the court below cannot be maintained as it is. The grounds for this argument are with merit.

(3) Therefore, the lower judgment is reversed and remanded. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)