[1] The criteria for determining whether a dismissal disposition is justified, and the method for determining whether a dismissal dismissal disposition is appropriate for a disciplinary dismissal in a case where there are various kinds of suspicions of disciplinary action against workers

[2] In a case where Gap limited liability company running a taxi passenger transportation business notifies Eul to its affiliated taxi engineer Eul on dismissal due to serious traffic accidents, traffic offenses, and abuse of transportation revenues, the case holding that the employment relationship between Eul and Eul does not constitute abuse of disciplinary power since the employment relationship between Eul and Eul cannot be continued by social norms

[1] Article 23(1) of the Labor Standards Act / [2] Article 23(1) of the Labor Standards Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 95Nu15742 Decided September 20, 1996 (Gong1996Sang, 3214) Supreme Court Decision 2007Du979 Decided May 28, 2009

Plaintiff (Attorney Choi Sung-ho, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Tax Co., Ltd. (Law Firm Lee & Lee LLC, Attorney No-ok, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Nu22166 decided June 13, 2013

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

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal on the grounds of disciplinary action

According to the reasoning of the judgment below, the court below determined that since the Plaintiff’s Intervenor (hereinafter “Supplementary Intervenor”) did not implement the total fare management system, contrary to the contents of the wage agreement entered into with the labor union (hereinafter “the wage agreement in this case”), the Plaintiff’s act of failure to pay transport earnings to the Plaintiff, a taxi driver affiliated with the Intervenor, does not constitute a ground for disciplinary action, but Article 11(1)5 of the wage agreement of this case provides that “the Plaintiff’s act of failure to pay transport earnings on a monthly basis without justifiable grounds, is subject to disciplinary action,” the Plaintiff’s act of failure to pay transport earnings on a monthly basis constitutes a ground for disciplinary action.

Examining the reasoning of the lower judgment in light of the evidence admitted by the lower court, the lower court’s recognition and determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the recognition of

2. As to the allegation in the grounds of appeal concerning disciplinary action taken by the defendant and the assistant intervenor

A. In a case where a disciplinary measure is taken against a person subject to the disciplinary measure, it is at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take the disciplinary measure as an exercise of discretionary power is deemed to abuse the discretionary power, the measure is unlawful. If the disciplinary measure is intended to be deemed an unlawful measure beyond the scope of discretionary power, depending on the specific cases, the contents and nature of the offense causing the disciplinary measure, the purpose for which the disciplinary measure is to be achieved, and the criteria for disciplinary action, etc., are to be determined based on a comprehensive consideration of various factors, such as the contents and nature of the offense causing the disciplinary measure, and the purpose for which the disciplinary measure is to be taken, and it is necessary to determine that the disciplinary measure is objectively unreasonable (see Supreme Court Decisions 200Da60890, 60906, Aug. 23, 2002; 2004Du10852, Apr. 29, 2005).

B. The reasoning of the lower judgment and the evidence admitted by the lower court reveal the following facts.

1) Article 50 subparag. 4 of the collective agreement concluded between the supplementary intervenor and his/her trade union provides that “a disciplinary dismissal shall be made” as one of the types of disciplinary action against workers, and Article 48 subparag. 5 provides that “the person who caused the occurrence of traffic accidents, serious negligence and violation of the Act on Special Cases concerning the Punishment of Traffic Accidents.” In addition, Article 11(1)4 of the instant Wage Agreement provides that “a person who habitually violates traffic regulations at least twice a month,” and Article 11(1)5 of the instant Wage Agreement provides that “a person whose monthly transportation income falls short of the standard amount without good cause

2) On December 23, 2009, the Plaintiff operated a taxi at a speed of 140 km per hour exceeding 50 km per hour, and was subject to disciplinary action for one month from suspension from office by an assistant participant, on the “first traffic accident” where the vehicle was damaged by being protected by the protective wall. After that, the Plaintiff was found one time on May 2010 and June 201 at a speed due to the excessive operation of a taxi. On September 12, 2010, the Plaintiff operated a taxi at a speed of 115 km per hour above the speed of 20 km at a speed of 20 km or more per hour, and again received the protective wall and got the passenger injured and the “second traffic accident” damaged by the vehicle was sent to the Plaintiff.

3) Meanwhile, from January 2008 to June 2010, the Plaintiff was found to have violated traffic regulations, such as violation of speed, violation of parking and stopping, and violation of exclusive bus lanes over 20 times. On March 3, 2008, the Plaintiff may also be found to have been discovered twice in July 2008, three times in October of the same year, three times in October of the same year, and twice in January 2009.

4) Furthermore, from October 207 to September 2010, the Plaintiff did not pay part of the standard amount of transportation revenue for the 28-month period from October 2007 to September 201, and on this ground, written a weekend, etc. six times from October 2007 to December 2009. The Plaintiff’s end of the time indicated that “The Plaintiff’s payment was made due to economic problems, such as large family’s livelihood, living expenses, monthly rent, etc., and would not be made in installments later, but the Plaintiff did not pay the standard amount of transportation revenue for the month from May 2010, June, August, and September, 201 after the end of the time.”

C. Such factual basis and the evidence as adopted by the court below reveal the following: the Plaintiff’s history of traffic accident, the cause and details of the second traffic accident, the damage amount, the details and frequency of the Plaintiff’s traffic offense, the time and interval of traffic offense, the frequency, period, and degree of the unpaid amount of monthly transport income, and the degree of justification, etc.; the above legal principles and the circumstances that taxi drivers are obliged to pay a high level of duty of care for taxi operation and traffic offense; the taxi drivers are obliged to pay monthly transport income standards, etc.; and it is very important to justify the violation of each of the above obligations; the taxi companies operating a business based on transport income are obliged to pay transport income on a regular basis; and it is highly likely that the unpaid amount of transport income and the employment relationship between the Plaintiff and the Intervenor were likely to undermine the stable existence of the employment relationship by taking account of private utility or embezzlement of the employee’s personal employees, and thus, it is difficult to view that the employment relationship between the Plaintiff and the Intervenor was within the extent that it could not continue under social norms due to the Plaintiff’s cause for disciplinary action.

D. However, in light of the circumstances stated in its reasoning, the lower court determined that the dismissal of the Plaintiff by the Intervenor was considerably inappropriate since the Plaintiff could not continue to maintain an employment relationship with the Intervenor. In so determining, the lower court erred by misapprehending the legal doctrine on disciplinary action, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)