(영문) 서울행정법원 2020.10.29.선고 2020구합54838 판결

The decision of review rendered by the National Labor Relations Commission on January 6, 2020 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is revoked.

Reasons

1. Details of the decision on retrial;

A. The Plaintiff is a corporation established on December 1, 2004 and operated E facilities, etc. for the purpose of discovering cultural population and supporting activities in accordance with the "Ordinance on the Establishment and Operation of the Cultural Foundation of DNA City". B. The Intervenor is a person who was employed and continued to work for the Plaintiff on March 15, 2006. From January 2, 2014 to January 1, 2018, the Intervenor supervised the Vice Minister of Finance and Economy who was performing the audit duties under the above management planning division while serving as the head of the management planning division. From January 2, 2018, the Plaintiff performed the audit duties directly while serving as the head of the office of the office of the office separated from the above management planning division in accordance with the reorganization of the Plaintiff’s organization.D City demanded a comprehensive audit of the Plaintiff from August 20, 2018 to August 31, 2018.

D. On February 27, 2019, the president of the Plaintiff demanded the personnel committee for disciplinary action against the Plaintiff for the following reasons.

Article 7 of the detailed rules on dispositions, such as the Plaintiff’s Employees’ Warning, provides that “An employee subject to disciplinary action three or more times within one year shall be subject to disciplinary action in accordance with the criteria for disciplinary action after referring it to the Disciplinary Committee or the Personnel Committee.” In addition, two times of caution measures within one year shall be deemed to be one time of disciplinary action.” The Secretary G of the Management Department shall be deemed to be the one time of disciplinary action on August 23, 2017, the order of caution issued on January 29, 2018, the order issued on February 8, 2018, the order issued on February 2 and 5, 2018, and the two times of caution issued on June 5, 2018, the intervenor was not referred to G disciplinary committee for the reason that it is difficult to conduct fair disciplinary proceedings, and Article 15(1) of the audit regulations are not prepared within one year after reporting to the director who has authority to represent disciplinary proceedings in the future.

Article 15(1) of the same Act provides that "the auditor shall report to the director with the authority of representation." The auditor shall report to the director with the authority of representation, if there is any matter which is deemed to require illegal, unjust or improvement of the audit results, and may request the head of the relevant department in writing after reporting to the director with the authority of representation." In addition, Article 19 of the Enforcement Rule of the Audit Regulations provides that "(special audit results) shall be reported to the person with the authority of representation within five days from the date of completion of the investigation unless there is a special reason." The intervenor shall report the results of the comprehensive audit in 2017 to the director with the authority of representation within 15 days from the end of the audit and inspection, and requested the head of the relevant department to take measures with respect to the matters which are illegal or necessary for improvement." The intervenor did not take any measures with respect to the auditor's request from the 20th of January 2, 2018 to the 20th of August 21, 2018.

E. On February 27, 2019, the Plaintiff’s personnel committee decided to dismiss the Intervenor on the ground of each of the instant disciplinary reasons. Accordingly, on March 29, 2019, the Plaintiff notified the Intervenor of the dismissal disposition (hereinafter “instant dismissal”).

F. On May 9, 2019, the Intervenor asserted that the dismissal of the instant case was unfair and applied for remedy to the Gyeonggi Regional Labor Relations Commission on L, May 9, 2019. On October 2, 2019, the Gyeonggi Regional Labor Relations Commission issued an initial inquiry court to the effect that the dismissal of the instant case is unfair on the ground that the determination of the instant disciplinary grounds is too heavy.

G. On November 13, 2019, the Plaintiff appealed and filed an application for reexamination to the National Labor Relations Commission. On January 6, 2020, the National Labor Relations Commission rendered a decision of reexamination to dismiss the Plaintiff’s application for reexamination on the same grounds as the initial trial decision (hereinafter “instant decision of reexamination”).

H. The Plaintiff is preparing and implementing detailed rules on dispositions, including employment regulations, personnel regulations, personnel regulations, enforcement rules of personnel regulations, audit regulations, enforcement rules of audit regulations, employee warning, etc., including the following matters:

(1)All the employees of the Foundation shall have a personnel committee under Article 6 (Duty of Good Faith) of the Employment Regulations. ① The Personnel Committee shall be established in the Foundation to be adequate for personnel management of its personnel. ② The Committee shall be composed of not less than five and not more than seven members, including the Chairperson, and the Committee shall be composed of not more than three and not more than four members, including the Chairperson. (1) The Committee shall be disciplinary action following the deliberation of the personnel committee in cases falling under any of the following subparagraphs: 2. When they violate or neglect to perform their duties under the Acts and subordinate statutes and regulations; 1. Article 54 (Standards for Disciplinary Action, etc.) of the Enforcement Rule of the Personnel Management Regulations (Criteria for Disciplinary Action), Article 36 (Criteria for Disciplinary Action), Article 36 (Criteria for Disciplinary Action) of the Official Rule) of the Personnel Management Committee shall be established. ② The Committee shall be established in the Foundation to take into account the degree of misconduct and mistake of disciplinary action against the suspect, the degree of his/her performance and discipline, and other matters pertaining to disciplinary action against him/her.

↑'부작위'란 직원이 상당한 기간 내에 이행해야 할 직무상 의무가 있는데도 이를 이행하지 아니하는 것을 말한다.+ '소극행정'이란 직원의 부작위 또는 직무태만으로 국민의 권익침해나 재단의 재정상의 손실이 발생하게 하는 업무행태를 말한다.[별표 6] 징계양정 감경기준감사규정)제15조(시정요구 등) ① 감사는 감사결과 위법 부당하거나 개선이 필요하다고 인정되는 사항이 있을 때에는 대표이사에게 보고 후 해당 부서장에게 서면으로 다음 각 호의 사항을 요구할 수 있다.3. 관계직원의 징계 또는 변상제19조(감사인의 보고) ① 감사인은 감사 종료 후 15일 이내에 감사보고서를 작성하여 대표이사에게 보고하여야 한다.감사규정 시행세칙)제18조(특별감사 업무의 운영) ① 특별감사의 보고 및 처리 방법은 정기 감사에 준함을 원칙으로 하며 필요한 경우에는 간략한 보고서로 완결할 수 있다.제19조(조사결과 보고) 조사결과는 특별한 사유가 없는 한 조사완료일로부터 5일 이내에 조사 지시자에게 보고하여야 한다. 다만, 관계 증거물 또는 서류는 조사 보고서와 함께 건별로 보관한다.

Any employee who has received a warning three or more times within one year under Article 7 (Effect of Disposition), such as Employee Warning, etc., shall refer it to the disciplinary committee or personnel committee, and take disciplinary action in accordance with the criteria for disciplinary action. Two times of caution disposition within one year shall be considered as one time of disciplinary action.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 4, 10, Eul evidence Nos. 1, 2 and 5 (including each number, if any) and the purport of the whole pleadings

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

A. The plaintiff's assertion

1) The Intervenor asserts that G was seeking disciplinary proceedings against G following a new director-general who was vacant as a member of the personnel committee because the fairness of the personnel committee is doubtful as to the grounds for disciplinary action 1. However, where G is subject to disciplinary proceedings in the personnel committee, the Intervenor should have commenced disciplinary proceedings against G as a matter of course, given that G is excluded from the position of the personnel committee member.

2) As to the grounds for disciplinary action 2, the intervenor asserts that there was a doubt that the â€˜the results of the comprehensive audit conducted by F, which was conducted by F, prior to that â€˜the results of the audit conducted in 2017' was unfair, that there was no conclusion of the investigation due to the difference of the department in charge of the audit, and that the plaintiff's internal audit of D, considering that it is difficult to deal with the pertinent matter on its own. However, it is not bound by the opinion of the working person who performed the audit affairs by the personnel committee, but it is recognized that G, which had been conducted by the head of the department in charge of the audit, was all subject to disciplinary action. The intervenor should have proceeded with the disciplinary procedure for â

3) Although the intervenor asserted that the director with the power of representation refused to approve the intervenor even though he reported the result of the audit on the grounds of disciplinary action No. 3, a director with the power of representation is merely an supplemental investigation and did not report the result of the supplementary investigation by the intervenor thereafter.

4) Inasmuch as the Intervenor was included as a person to be disciplined who tried to be promoted in excess of his/her own or his/her improper rank, the Intervenor intentionally neglected his/her disciplinary duties as stated in each of the instant disciplinary grounds. Since multiple disciplinary grounds conflict, the Intervenor may make a decision on the first step higher level than the scheduled disciplinary action against the most significant misconduct. Even if grounds for mitigation exist to the Intervenor, the mitigation of disciplinary action constitutes discretionary action, and the Intervenor cannot be applied as it constitutes an act of corruption. Considering such circumstances, the dismissal of the Intervenor is justified as it is so far as the Intervenor and the Plaintiff are not able to continue the employment relationship between the Intervenor and

B. Recognition of each of the grounds for disciplinary action in this case

1) The following facts may be acknowledged either as a dispute between the parties, or as a whole by taking into account the respective descriptions of evidence Nos. 4 and 12 and the purport of the entire pleadings.

① Grounds for Disciplinary Action 1: G head of the General Affairs Office of the Plaintiff: (a) was subject to the disposition of caution on August 23, 2017, the disposition of discipline on January 29, 2018, the disposition of caution on February 8, 2018, and the disposition of caution on June 5, 2018; (b) constitutes “where he/she was subject to the disposition of caution on at least three occasions within one year, which is the grounds for disciplinary action stipulated in Article 7(1) and (2) of the Detailed Regulations on the Disposition of Plaintiff’s Employees’ Warning.” Nevertheless, the Intervenor, who was appointed as the head of the Audit Office from January 2, 2018, did not start the procedures for disciplinary action against G; (c) was not subject to comprehensive audit and inspection from August 21, 2018, which was conducted by the Director of the Audit Office until the date of comprehensive audit and inspection on August 21, 2018.”

③ Grounds for Disciplinary Action 3: The F carried out the special audit of Plaintiff Arts Bureau Director M in relation to ① the special audit of Plaintiff Arts Bureau Director M, from January 16, 2017 to February 17, 2017, and the special audit of Plaintiff management bureau customer support division J in relation to the I project, etc., respectively. On January 2, 2018, the F transferred the results of the said special audit to the Intervenor appointed as the Chief of Audit and Inspection Office. The Intervenor voluntarily carried out the special audit of Plaintiff Safety Facilities from January 16, 2018 to January 18, 2018.

On December 27, 2017, the Plaintiff, who was F and his superior, reported the results to the directors having the authority to represent the said special audit. On May 2018, the Plaintiff reported the results to the directors having the authority to represent the said special audit, and recommended each of them to take measures against the persons subject to audit. Each of the above recommendations was returned to the auditor’s office. The Intervenor did not report the results of the said special audit again to the directors having the authority to represent, or not suggest the measures.

2) Each of the instant disciplinary grounds constitutes grounds for disciplinary action under Article 52 subparag. 1 and 2 of the Personnel Management Regulations, Article 6 of the Employment Regulations, Articles 15(1) and 19(1) of the Audit and Inspection Regulations, Article 19 of the Enforcement Rule of the Audit and Inspection Regulations, and Article 7(1) and (2) of the Enforcement Rule of the Regulations on Measures such as Employees’ Warning, etc., on the ground that the Intervenor’s failure to perform his/her audit and inspection duties faithfully as

1) When a disciplinary measure is taken against a person subject to the disciplinary measure, the person subject to the disciplinary measure is at the discretion of the person having authority to take the disciplinary measure. However, the disciplinary measure may be deemed 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 since the person has substantially lost validity by social norms (see, e.g., Supreme Court Decisions 2000Da60890, 60906, Aug. 23, 2002; 2004Du10852, Apr. 29, 2005).

In particular, dismissal disposition is justified in cases where there are grounds for an employee’s responsibility to the extent that the employee’s employment relationship cannot continue, and whether it is impossible to continue the employee’s employment relationship by social norms should be determined by comprehensively examining various circumstances, including the purpose and nature of the employer’s business, the conditions of the workplace, the status and details of the employee’s duties, the motive and background of the act of misconduct, the influence of the employee’s act on corporate order, such as the risk of disturbing the corporate deceptive order, and the attitude of past work (see, e.g., Supreme Court Decision 2001Du10455, May

2) In light of the following circumstances, the dismissal of the instant case was made on the grounds that an intervenor is not responsible to the extent that the employment relationship between the Plaintiff and the Intervenor cannot be continued, based on comprehensive consideration of the respective descriptions as well as the entire purport of evidence Nos. 2, 8, 10, and 3 as well as the entire purport of pleading Nos. 2, 8, 10, and 3. The

With respect to the grounds for the first disciplinary action, G is difficult to readily conclude that the intervenor intentionally neglected to take disciplinary action against G for a long time since it has not been verified that the intervenor failed to take any action from June 5, 2018 as the result of the audit conducted by D/C from June 5, 2018 to August 2018. Moreover, it is difficult to deem that the intervenor neglected to take disciplinary action against G for a long time due to the intervenor’s failure to perform his/her duties. In addition, the Plaintiff’s personnel regulations did not stipulate the grounds for exclusion of personnel committee members in relation to the organization of the personnel committee, and Article 2 of the audit regulations of the Plaintiff provide that “the handling of audit duties shall be governed by the relevant statutes, ordinances, and articles of incorporation, except for those prescribed by the relevant statutes,” but the above language alone is difficult to expect that the grounds for exclusion of the disciplinary committee members should be applied to the Plaintiff’s personnel committee. Therefore, it is difficult to deem that there was gross negligence on the part of the intervenor.

With respect to the grounds for disciplinary action 2, the Intervenor’s failure to take any action against “the result of a comprehensive audit conducted from January 2, 2018 to August 2018, 2017,” which was appointed as the head of the audit office, has passed approximately seven months since it was confirmed that the Intervenor did not take any action against the Intervenor. Therefore, the Intervenor’s failure to perform his/her duties cannot be deemed to be less than that of the Intervenor.

However, it cannot be ruled out that G 2017, which was pointed out that there was a reason for misconduct in ‘the result of the comprehensive audit in 2017', was difficult for the plaintiff to additionally investigate the reason for disciplinary action before the plaintiff proceed with the disciplinary procedure, according to the direction that G 201 members of the general affairs department to which he belongs should not cooperate with the audit. In addition, the results of the D 2017 comprehensive audit, which was pointed out in ‘the result of the D 2017 comprehensive audit,' all appropriate disciplinary action or discipline disposition

Before the Intervenor is appointed as the chief auditor with respect to the grounds for disciplinary action No. 3, the Intervenor and F reported two of the special auditors to the director with the authority of representation, and the director with the authority of representation failed to conduct disciplinary action. After the Intervenor is appointed as the chief auditor, the Intervenor voluntarily reported to the director with the authority of representation by carrying out one of the special auditors, but the director with the authority of representation was returned without any special reason. Such failure to take three of the following measures seems to be the main responsibility for the director with the authority of representation of the Plaintiff to exercise his authority properly.

○ Intervenor received official commendation from the Minister of Culture, Sports and Tourism on December 31, 2012, which constitutes grounds for mitigation under Article 39(1)1 of the Personnel Regulations of Plaintiffs.

In full view of the above circumstances, the grounds for disciplinary action Nos. 1 and 3 are "the cases where the degree of non-ranking is weak and the progress room is serious" among those referred to in attached Table 4 of Article 36 (1) of the Enforcement Rule of the Regulations on the Personnel Affairs of Plaintiffs, and the grounds for disciplinary action No. 2 is "the cases where the degree of non-ranking is weak and gross negligence is weak" among those referred to in attached Table 4.

The detailed rules on the enforcement of the personnel regulations of the Plaintiff do not provide for the concurrent cases where various disciplinary grounds compete, and the intervenors have grounds for mitigation. Considering this, it would be too harsh to ultimately impose disciplinary measures exceeding the 'tuition-Suspension' on the intervenors. Accordingly, the dismissal of the instant case was conducted beyond the pre-determined standard of disciplinary action in the enforcement rules of the personnel regulations of the Plaintiff.

3) As to this, the Plaintiff asserts that the Intervenor unfairly raised the salary grade of G, or unfairly amended the Plaintiff’s salary regulations to increase the remuneration, and that as a result, G obtained personal benefits, such as having the representative director appoint the Intervenor to Grade IV in excess of the fourth class without the approval of the president, who was the appointing authority, and thus, the grounds for mitigation cannot be applied to the act of corruption and the disciplinary action should be considered disadvantageously.

However, the written evidence Nos. 5 through 7 (written request for disciplinary action against each plaintiff's G and intervenor) is not sufficient to view that the intervenor conspireds with G to set the salary class of G unfairly high or amended the Plaintiff's salary regulations without following due process, in collusion with G beyond simple negligence. Therefore, it is difficult to deem that G unfairly granted the benefit of appointment to Class 4 to the intervenor in return for that consideration.

4) The Plaintiff’s assertion is without merit.

D. Sub-committee

Each of the instant grounds for disciplinary action are recognized. However, even if all of the grounds for disciplinary action are considered, it is difficult to deem that the Plaintiff and the Intervenor are responsible for the Intervenor to the extent that they could not continue the employment relationship, and thus, the dismissal of the instant case is unreasonable. The instant decision on reexamination

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge, presiding judge, chief judge

Judges Park Jung-sik

Judges Park Jong-won

Note tin

(1) Article 15 (Exclusion and Challenge) ① Relatives or immediate superior of the person suspected of disciplinary action, etc. among the members of the Disciplinary Committee (the grounds for disciplinary action have occurred)

A person who has been an immediate superior during the period of time or a person who has a reason for disciplinary action, etc. shall be involved in the deliberation and resolution of the case.

subsection (b) of this section.

참조조문

-공무원 징계령 제15조

-공무원 징계령 제15조 제1항

참조판례

-대법원 2002. 5. 28. 선고 2001두10455 판결

-대법원 2002. 8. 23. 선고 2000다60890,60906 판결

-대법원 2005. 4. 29. 선고 2004두10852 판결

유사 판례

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-서울행정법원 2017.03.30 2016구합71461

-대전지방법원 2021.01.27 2020구합100108

-서울행정법원 2016.07.07 2015구합71037