2019Na20206 Nullification of dismissal

OO

Attorney Kim Sung-jin, Counsel for the defendant-appellant

Attorney Kim Jae-young

Bitch Hyhish Co.

Attorney Park So-young, Counsel for the plaintiff-appellant

Gwangju District Court Decision 2018Gahap52377 Decided December 20, 2018

May 29, 2019

July 3, 2019

1. Revocation of the first instance judgment.

2. It is confirmed that the Defendant’s disposition of dismissal against the Plaintiff on November 26, 2017 is null and void.

3. All costs of the lawsuit are borne by the Defendant.

The same shall apply to the order.

1. Basic facts

A. The relationship between the parties

The defendant is a company running high-speed bus transportation business. On September 17, 2004, the plaintiff joined the defendant and served as a member working on board who drives an express bus.

B. Occurrence of the instant traffic accident

1) On August 12, 2017, the Plaintiff started Ulsan Island 06:40 on August 12, 2017, and transferred the Defendant’s express bus to Gwangju, and caused a traffic accident in the area near JanIC around 08:01 (hereinafter “instant accident”).

2) On September 25, 2017, the Defendant held a personnel committee and decided to suspend working on the Plaintiff on the ground of the instant accident (temporary suspension) for five months (from September 27, 2017 to February 26, 2018), and notified the Plaintiff on the following day.

C. The disposition of revocation of the instant license and the subsequent ipso facto retirement disposition of this case

1) On November 13, 2017, the Commissioner of the Do Police Agency issued a disposition to revoke the Plaintiff’s driver’s license (hereinafter “instant disposition to revoke the license”) pursuant to Article 93(2) of the Road Traffic Act on the ground that the Plaintiff’s given points to the Plaintiff on the ground that the Plaintiff’s given points to the Plaintiff according to the instant accident exceeds 121 points as the Plaintiff’s given points for one year (140 points).

2) On November 26, 2017, the Defendant notified the Plaintiff on November 26, 2017 that the Plaintiff was automatically retired pursuant to Article 67(2)6 of the Rules of Employment of the Defendant (hereinafter “instant ipso facto retirement provision”). (hereinafter “instant ipso facto retirement disposition”) to the effect that the Plaintiff’s driver’s license was revoked.

D. Revocation of the revocation of the instant license

The Plaintiff filed an objection against the revocation of the instant license, and the Commissioner of the Jeonnam-do Police Agency accepted the Plaintiff’s objection on February 1, 2018, and changed the penalty imposed on the Plaintiff according to the instant accident to the suspension of driver’s license (110 days), respectively.

[Ground of recognition] Unsatisfy, Gap evidence 2 to 6, 14, Eul evidence 1 to 3

Second, the purport of the whole pleading

2. Summary of the plaintiff's assertion

(a) Absence of reason for ipso facto retirement;

The plaintiff was subject to the disposition of revocation of the license of this case during the period of suspension of work on board, which is not obliged to provide labor to the defendant, and the revocation of the license of this case was revoked before the expiration of the period of suspension of work on board, and changed to the disposition of suspension of license. Therefore, the plaintiff does not correspond to the "members on board whose driver'

(b)the deviation and abuse of discretionary authority;

The Plaintiff was dissatisfied with the instant disposition of revocation, and the Defendant knew that the instant disposition of revocation may be revoked, and did not give the Plaintiff an opportunity to dispute the instant disposition of revocation by converting the Plaintiff into another occupation, etc. Rather, on the date of revocation of the instant disposition of revocation on the ground that the Plaintiff led labor union activities, the Defendant appears to have immediately rendered the instant disposition of ipso facto retirement against the original Defendant on the grounds that the Plaintiff led to labor union activities. Accordingly, the instant disposition of ipso facto retirement was not effective since it violated the duty of care under the instant contract, and exceeded and abused the discretionary authority.

A. Relevant legal principles

In a case where an employer provides as a ground for ipso facto retirement and provides a procedure different from ordinary dismissal or disciplinary dismissal, unless the ground for ipso facto retirement appears to be the ground for automatic termination of labor relations, such as the death or retirement age of the employee, and the expiration of the term of the labor contract, the ipso facto retirement disposition is subject to the restrictions provided for in Article 23 of the Labor Standards Act. As such, in a case where the employment rules provide that the ground for ipso facto retirement does not constitute the ground for automatic termination of labor relations, the meaning of ipso facto retirement should be determined reasonably in light of the purport of the rules or the contents of other reasons for ipso facto retirement (see, e.g., Supreme Court Decision 2007Du2067, Oct. 25, 2007). The ipso facto retirement disposition does not constitute a justifiable ground provided for in Article 23(1) of the Labor Standards Act (see, e.g., Supreme Court Decision 196Da21065, Oct. 29, 198).

B. Determination as to whether the instant disposition constitutes dismissal

This case’s ipso facto retirement clause is clear that the employee on board whose driver’s license was revoked is ipso facto retirement, and it does not constitute grounds for automatic extinguishment of labor relations. Therefore, the instant disposition on the ground that the Plaintiff constitutes grounds for retirement stipulated in the instant ipso facto retirement clause constitutes dismissal under Article 23(1) of the Labor Standards Act.

C. Determination as to the existence of a reason for ipso facto retirement

1) According to the aforementioned evidence, the following facts are revealed.

A) The grounds for ipso facto retirement prescribed in the rules of employment of the defendant company are as follows: (a) where the employee explicitly or implicitly expresses that he/she had no intention to provide labor (in the case of a worker who has been absent from work for at least seven consecutive days; (b) where the conditions of leave have not been terminated within the period of leave due to its nature (in the case of death, where the conditions of leave have not been terminated within the period of leave); (c) where it is deemed difficult for the employee to provide labor due to some of the cases, physical strength, mental or physical disability, disability, disease, injury, etc.; (d) where the driver’s license of the employee on board has been cancelled; (e) where the employee on board the employee on board the retirement age expired (Article 67 of the Rules of Employment).

B) The rules of employment of the defendant company also stipulate that even if a worker is under detention in a criminal case, he/she may order a leave of absence for a fixed period not exceeding six months, and if the conditions of leave are rescinded by the expiration date, he/she shall be deemed to be retired ipso facto (Articles 44 and 45 of the Rules of Employment)

C) The rules of employment of the Defendant Company does not stipulate a separate disposition in cases where the driver’s license of the employee on board has been suspended.

2) Examining and comparing the contents of the rules of employment of Defendant Company with each other, it is reasonable to see that the meaning of “the case in which the driver’s license is revoked” in the instant provision refers to the case in which the driver’s license is legally revoked and the case in which the driver’s license cannot be contested against the disposition of revocation. Thus, it is reasonable to see that the employee’s retirement constitutes “the case in which the employer would not raise an objection against the employee even if the employee is retired ipso facto, on the ground that the driver’s license is not legally revoked and the driver’s license cannot be contested against the disposition of revocation.”

3) However, as seen earlier, the Defendant immediately issued the instant ipso facto retirement disposition pursuant to the instant ipso facto retirement provision on November 26, 2017, the date on which the revocation date of the instant license was revoked, and (i) November 26, 2017, the date on which the Plaintiff was notified of the instant license revocation, which appears to have been absent from the date on which the Plaintiff applied for the suspension of execution as to the instant license revocation, and affixed the seal on the Plaintiff’s application for the suspension of execution as to the instant license revocation, and (ii) the Plaintiff was dissatisfied with the instant license revocation, and the Defendant seems to have sufficiently known, ③ the suspension period until February 26, 2018, the Plaintiff was exempted from the Defendant’s duty to pay wages during the suspension period, but it is difficult to view that the Defendant was ipso facto retired from office at the time of the instant ipso facto retirement, and (iii) it is difficult to view that the Plaintiff had no further reason to assert the Plaintiff’s ipso facto retirement as to the instant disposition.

4) Therefore, the Defendant’s disposal of this case ipso facto to the Plaintiff on November 26, 2017 was unlawful on the ground that the instant license was revoked.

D. Determination on whether or not to deviate from or abuse discretionary power

Even if the Defendant’s assertion regards the meaning of the instant provision as “the historical fact that the driver’s license was revoked,” in light of the facts acknowledged earlier and the overall purport of pleadings, it is difficult to recognize that the evidence submitted by the Defendant alone is not sufficient to acknowledge that the Plaintiff has a reason to assume the responsibility to the extent that the Plaintiff is unable to continue the employment relationship under the social norms, and there is no other evidence to acknowledge it. Therefore, the instant provision is not justifiable, and it is unlawful that it deviates from and abused the right to discretion on disciplinary action.

① The revocation of the instant license was attributable to the Plaintiff’s error in imposing penalty points according to the instant accident, and there was no circumstance to deem that the Plaintiff was responsible for the error in imposing penalty points. Therefore, it is unreasonable to vest the Plaintiff’s disadvantage due to the error in imposing penalty points.

② As seen earlier, the Plaintiff’s instant disposition of license was revoked and changed to the disposition of license suspension before the expiration of the Plaintiff’s service suspension period. Since the license suspension period under the disposition of license suspension expires on March 5, 2018 (110 days from November 26, 2017), the Plaintiff is able to engage in driving operations immediately after the termination of the service suspension period and seven days from the expiration of the service suspension period, and it is difficult to view the said seven-day period as the period to the extent that the Defendant’s business activity could seriously interfere with the Defendant’s business activity.

③ The Defendant’s rules of employment provide that “A person who causes a serious accident or a traffic accident may be dismissed, temporarily dismissed, dismissed, or reduced.” However, the Plaintiff was subject to the instant disposition of suspension of work on board on September 25, 2017 due to the instant accident. As long as the cancellation of the instant disposition was revoked, the Defendant’s disciplinary action against the Plaintiff on the grounds of historical fact that the instant license was revoked is ultimately the same as that of the instant accident. This is unreasonable as it constitutes a practical double disciplinary action.

④ On September 17, 2004, the Plaintiff appears to have not been subject to disciplinary action since its membership with the Defendant before the instant accident occurred.

4. Conclusion

The instant disposition is null and void as it does not have any ground for the Plaintiff’s ipso facto retirement, and it deviates from and abused the right to the amount of disciplinary punishment, and as long as the Defendant asserts that the instant ipso facto retirement disposition is effective, the benefit of confirmation that the Plaintiff has asserted its validity is also recognized.

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance differs from this conclusion, it is unfair to accept the plaintiff's appeal and to revoke the judgment of the court of first instance and accept the plaintiff's claim. It

Hunting species (Presiding Judge)

Salary class root

Dok Kim-hee