2012Guhap42311 Revocation, etc. of the Request for Remedy against Unfair Dismissal

A

1. The chairperson of the National Labor Relations Commission;

2. Seoul Regional Labor Relations Commission;

B

August 28, 2013

October 18, 2013

1. The plaintiff's claim against the defendants is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

1. On November 1, 2012, the Central Labor Relations Commission rendered a decision of reexamination (hereinafter referred to as the “decision of reexamination”) regarding the case of application for reexamination of the relief application for the unfair remedy application between the Plaintiff and the Defendant Labor Relations Commission’s assistant intervenors (hereinafter referred to as “participatings”) on November 1, 2012 and the decision of reexamination (hereinafter referred to as “instant decision of reexamination”).

2. The defendant Seoul Regional Labor Relations Commission (the plaintiff stated in the complaint that "the chairperson of the Seoul Regional Labor Relations Commission" was the defendant, but Article 33 (1) of the Labor Standards Act stipulates that "Labor Relations Commission shall impose a charge for compelling compliance," and the Labor Relations Commission Act merely stipulates that the lawsuit against the disposition taken by the National Labor Relations Commission shall be the chairperson of the National Labor Relations Commission (Article 27 (1)) and does not have any provision regarding the disposition taken by the local Labor Relations Commission (Article 27 (1)). As the Labor Relations Commission itself is the defendant with respect to the disposition taken by the local Labor Relations Commission, the above provision appears to be a clerical error and the disposition imposing a charge

1. Circumstances concerning the decision on review and disposition imposing a charge for compelling compliance;

A. The plaintiff is a personal business operator registered as a business operator with the trade name of "C" and engaged in wholesale, manufacturing, etc. using 20 full-time workers, and operates a personal business entity with the trade name of "D", "E", "F", and "G", and the management of personnel, legal affairs, accounting, etc. of five companies shall be controlled by the Seoul Office of Seoul.

B. On March 4, 2010, the Intervenor was dismissed on April 12, 2012 on the ground that: (a) he/she was employed as a deputy head of the Seoul H office on the ground that he/she had been in charge of legal affairs; (b) transferred his/her office from January 1, 201 to C; and (c) had been in charge of the same business affairs at the same office (the office Seoul office and D appears to have used the same office); (d) he/she did not communicate his/her business instructions to the Plaintiff; and (c) he/she was released from office on April 12, 2012 on the ground that he/she did not comply with the Plaintiff’s instructions at the time of preparation of four legal documents; (d) on the ground that he/she had been served with the Seoul Regional Labor Relations Commission’s request for remedy on the ground that he/she would be served with the amount equivalent to the instant order for remedy within 20 days from the date of dismissal of the Intervenor; and (e) the Plaintiff did not receive the order for remedy;

[Reasons for Recognition] Facts without dispute, Gap evidence 2-4, 8, Eul evidence 1, Eul evidence 1-1, Eul evidence 1-2, the purport of the whole pleadings

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

A. The plaintiff's assertion

1) At the time of dismissal, the intervenor was affiliated with D other than C in actual circumstances, such as performing the litigation affairs of D at the time of dismissal. D is not only two full-time workers employed in D as a workplace separate from other four enterprises operated by the plaintiff. Thus, the provisions of the Labor Standards Act on the system for the application for unfair dismissal do not apply to the intervenors.

2) The intervenor prepared a written transfer of business without raising any objection to the dismissal during the period of one-month advance notice of dismissal and requested the payment of retirement benefits. This should be deemed to have consented to the dismissal of the plaintiff by the intervenor. Therefore, since an agreement between the plaintiff and the intervenor on the termination of the employment contract was reached, it is not that the plaintiff dismissed the intervenor.

3) Even if the Plaintiff dismissed the Intervenor, the Intervenor demanded the Plaintiff to increase the wage, despite the fact that the Intervenor had already been sufficiently increased the wage, and resisted sound while demanding the Plaintiff to do so. On the other hand, the Intervenor neglected to perform his/her duties, and thus, the Plaintiff dismissed the Intervenor from his/her office to the extent that the Plaintiff could no longer maintain an employment relationship with the Intervenor. Therefore, the Intervenor’s dismissal against the Intervenor is justifiable.

B. Facts of recognition

1) An intervenor is to receive KRW 2.5 million per month and is employed by the plaintiff, and the first 3 months have been paid KRW 2.2 million per month as a training period and received KRW 2.5 million per month from June 2010 until dismissal.

2) Around January 2012, the Intervenor demanded the Plaintiff to increase wages, and the Plaintiff did not comply with the Intervenor’s demand while making a statement that he/she will be entrusted with his/her own disposition. Around March 10, 2012, the Intervenor sought written and verbal response to the Plaintiff’s demand for wage increase, but the Plaintiff was waiting.

3) On the 12th of the same month, the intervenor sought a reply to the demand for wage reimbursement again to the Plaintiff, but the intervenor resisted the defect that the Plaintiff could not raise wages.

4) On March 12, 2012, the Plaintiff issued a notice of dismissal to the Intervenor on April 12, 2012. On the notice of dismissal, the Plaintiff dismissed the Intervenor on April 12, 2012. On the notice of dismissal, the Plaintiff stated the reasons for dismissal: (i) there is a difference of character between the intervenors; (ii) there is no way to deliver work instructions; (iii) there was an objection to the payment of wages; and (iv) the Plaintiff did not comply with the Plaintiff’s instructions at the time of preparation of the legal document; (v) the Intervenor filed a lawsuit seeking confirmation of invalidity of dismissal against the Plaintiff on August 13, 2012, with the Seoul Central District Court 2012Ga52593, and was sentenced by the first instance court to the judgment confirming that the dismissal of the instant case was null and void; and (v) the Plaintiff withdrawn the dismissal on April 12, 2012; and (v) the Plaintiff did not make an increase in the Plaintiff’s wages to the Intervenor’s employees for 210 years including the employment.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, 4, 8, Eul evidence 1, Eul evidence 5-1, Eul evidence 8-1, Eul evidence 8, the purport of the whole pleadings

C. Determination

1) Whether the intervenor is a worker affiliated with D

As seen earlier, the intervenor was affiliated with C at the time of dismissal, and only the descriptions of Gap evidence Nos. 5 and 6 are insufficient to recognize the intervenor as the worker D in substance, and there is no other evidence to acknowledge this otherwise, the plaintiff's assertion in this part is without merit.

2) Whether the agreement is terminated

The statement in Gap evidence No. 5 alone is insufficient to recognize that the intervenor consented to retirement, and there is no other evidence to acknowledge it, and the mere fact that the intervenor prepared and received retirement allowances does not necessarily mean that the intervenor consented to the termination of the labor contract. Therefore, the plaintiff's assertion that the contract was terminated by the contract is without merit.

3) Whether any justifiable ground for dismissal exists

In order for an employer to be deemed reasonable to dismiss an employee on any ground, the employer must do so in cases where there are grounds for the employer’s responsibility to the extent that the employee could not continue the employee’s employment relationship with the employee. Whether it is impossible to continue the employee’s employment relationship with the employee is determined by social norms shall comprehensively examine and determine the following: (a) the purpose and nature of the employee’s business; (b) the status of the workplace; (c) the substance of the employee’s position and duties in charge; (d) the motive and background of the act of misconduct; (e) the impact of the employee’s deceptive scheme on the company’s order; and (e) the past employer’s attitude (see, e.g., Supreme Court Decision 97Nu18189, Nov. 10, 198). In this case, the health team and the intervenor demanded wage increase among the employees working for the company operated by the Plaintiff, but the Intervenor did not appear to have been unreasonable; and (b) the Intervenor’s demand for dismissal, which is the intervenor’s wages, did not undermine’s duty under social norms.

3. Whether the instant disposition is lawful or not, and the instant disposition aims at the legal effect separate from each other. The Plaintiff sought the revocation of the instant disposition along with the instant disposition, and thus, the Plaintiff’s assertion was accepted, and thus the instant order is revoked and confirmed, the Defendant Seoul Regional Labor Relations Commission shall return the enforcement fine paid by the Plaintiff pursuant to Article 15 of the Enforcement Decree of the Labor Standards Act, and even if the Plaintiff did not dispute the illegality of the instant order in a lawsuit seeking revocation of the instant disposition, it cannot be said that the Plaintiff would be harsh (see Supreme Court Decision 2012Du6964, Mar. 14, 2013). Therefore, in a lawsuit seeking revocation of the instant disposition, the illegality of the instant disposition can only be asserted against the inherent illegality of the instant disposition, and it cannot be asserted against the illegality of the instant order.

However, according to each of the evidence Nos. 2, 2, and 3 evidence Nos. 2, 2, and 3, the plaintiff returned to the intervenor on July 24, 2012, but issued it to the manager in charge of parking of the office, not the original office, and the plaintiff did not pay the difference even though the amount equivalent to the wages to be paid to the intervenor seems to exceed the retirement pay, it is recognized that the plaintiff failed to comply with the order for remedy of this case without paying the difference. Therefore, the disposition of this case is lawful.

4. Conclusion

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

Appointment of presiding judge or judge;

Judges Lee Byung-hee

Judge Kim Gin-hun