208Guhap1321 ex officio revocation of revocation of disposition

P (58 years old, South)

Attorney Kim Tae-sik, Counsel for the defendant-appellant

Head of the Busan Metropolitan Government XX

Law Firm Samyang, Counsel for the defendant-appellant

Attorney Kim Sung-hoon

August 21, 2008

September 25, 2008

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's ex officio dismissal disposition against the plaintiff on September 10, 2007 shall be revoked.

1. Details of the disposition;

A. On February 1, 1979, the Plaintiff was appointed as a local administrative secretary (Grade 9) and was promoted to the Assistant (Class 7) on October 31, 1989, and thereafter maintained the same class until now, and was on duty in the regional economy and the regional economy of the country supporting the birth of the Defendant-gu residents from September 1, 2006.

B. On March 2, 2007, according to the personnel management plan established on February 1, 2007, the defendant organized and operated the work support team for those who lack of ability to perform their duties among public officials belonging to the defendant, or those who lack of work performance, and five persons including the plaintiff, including the plaintiff, to be employed in the work support team in accordance with the order of mobilization order. On June 18, 2007, the defendant conducted a comprehensive evaluation of the plaintiff's ability to perform duties and poor work performance, as a result of the comprehensive evaluation of the research project, the current work site, computer utilization ability, attitude, etc., the basic knowledge for performing his duties is extremely poor, and the work performance for three months is extremely poor, and the mental self-employed is extremely poor, and the work performance for three months is extremely poor, and the work performance for three months is extremely poor, and the duty of dismissal of the plaintiff including the plaintiff is insufficient to cooperate with the other party under subparagraph 1 of Article 6 of the Local Public Officials Act.

C. In addition, the defendant, during the period of dismissal from his position on September 10, 2007, provided an opportunity to perform education and training and to provide special research tasks for the recovery of ability or the improvement of work performance for six months from March 2, 2007, but there is no change in the situation, but to be improved in the future, and there is no difference between employees due to the fact that the employee's failure to perform his duties and the fact that he evades his work together due to extremely lack of work performance ability, after going through a resolution of the personnel committee of the defendant-gu, the plaintiff was ex officio (hereinafter referred to as "disposition of this case") pursuant to Article 62 (1) 7 of the Local Public Officials Act.

【Reasons for Recognition】

2. Whether the disposition is lawful;

A. The plaintiff's assertion

(1) The Defendant’s order of mobilization on March 2, 2007 is an unlawful and invalid disciplinary measure without any basis under the Local Public Officials Act, and the contents of the work assigned to the Plaintiff are irrelevant to the Plaintiff’s occupational ability. The work site is designated by the original office of the Plaintiff, not the Plaintiff’s work department, but the office of the head of the office of general affairs in the Defendant’s office, and excluded the Plaintiff from the members by preventing contact with the employees. The evaluators are members of the Busan Metropolitan City Personnel Committee, the head of the office of general affairs, who is the member of the Busan Metropolitan City Personnel Committee, and the experts are not able to achieve the objective, reliability, and feasibility as methods of evaluating the Plaintiff’s occupational ability. Since the assessment contents of the research task, etc. imposed by the Defendant on the Plaintiff from the date of the instant disposition after the order of mobilization do not exist objectivity, validity, and reliability, the instant disposition is unlawful.

(2) Even if it is recognized that there were some grounds for disciplinary action against the Plaintiff, the Plaintiff was not subject to a disciplinary action, except for four times after being appointed as a public office, and one-month disciplinary action in salary reduction. It is merely a formal proceeding of a series of procedures for the purpose of withdrawing the Plaintiff, and thus, the instant disposition should be invalidated or revoked as it deviates from or abused discretion, and thus, is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

(1) Disciplinary action against the plaintiff for one month of his salary reduction

On August 21, 1996, the Plaintiff was issued as a public health clinic under the Defendant’s jurisdiction. On October 7, 1999, the Plaintiff was issued as a public health clinic for the public health clinic. On the part of the Defendant’s day-to-day day-of-day day-day day-of-day day-day day-of-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day-day day day-day day day-day day day day day day-day day-day day-day day-day day-day day day day day day day day day day day day-day day day day day day day.

After the above assault case occurred, the plaintiff submitted a written petition to various agencies including the National Human Rights Commission of Korea, the Anti-Corruption Commission, the Prime Minister’s investigator, and the Audit and Inspection Officer of the Ministry of Health and Welfare for several times in 2004. On September 13, 2005, when submitting a written petition concerning the above assault case to the Minister of Planning and Budget, the money order of KRW 1 million was sealed. The defendant submitted a written petition to various agencies including government agencies, which is not based on the grounds that the plaintiff submitted a written petition to the Minister of Planning and Budget for several times since 1999, and around September 2005, submitted a written petition to the Minister of Planning and Budget, and thereby falling down with the status of the entire public officials of the XX-gu Office by providing KRW 100,000 as well as seriously impairing the reputation of his staff.

The plaintiff filed a lawsuit to revoke a disciplinary action with the Busan District Court as 2006Guhap2443 on the ground that the above salary reduction disposition is unfair, but the plaintiff was sentenced to the dismissal of the plaintiff's claim on December 21, 2006. The plaintiff appealed to the Busan High Court on May 4, 2007, but the above judgment became final and conclusive around that time.

(2) Operation and evaluation results of the Defendant’s work assistant support team

(A) On March 2, 2007, the Defendant: (a) selected five persons including the Plaintiff as non-operatings; and (b) established a plan for the operation of the work support team under the responsibility of the chief of the general affairs division; and (c) the main contents are as follows.

(c)

1. Establishment and operation of task auxiliary support teams;

1. Installation period: Continuation from March 2, 2007 (from March 2, 2007 until the extinction of private cause);

2. Place of installation: next to the office of general secretary general, director general, and office of general secretary general;

○ Working Hours: Implementation Principles from 13:00 to 18:00 each day;

The main tasks of the ○○ main tasks (oriented tasks) such as surveys such as traffic volume, environmental inferior areas, and the actual conditions of public facilities, volunteer activities, such as welfare facility voluntary farms, crackdowns and maintenance works, illegal and inferior advertising materials, crackdowns and maintenance works, illegal parking and stopping meters and maintenance works, illegal activities, central separation, street zone, traffic island, etc., and encouraging the collection of delinquent taxes, etc.

○ Performance Evaluation (60 points): Quantity of performance (30 points), timely (20 points), degree of improvement of work (10 points), attitude of performance and mental self-employed (40 points) [Special Research tasks]

○ Working Hours: Annual Implementation Principles from 9:00 to 12:00

○ Assignment Tasks: Two cases per week (evaluation of major policy development tasks and other research tasks for the development of the Gu affairs).

-evaluations,

The general affairs division: the general affairs division, the general affairs division, the general affairs division, the general affairs division, and the department related to the general affairs division: the person in charge, the director, and the director.

- The content of assessment: creative planning capacity (20 points) + practical(20 points) + effort(20 points) + compilation capacity(20 points) + mental self-employed(20 points)(20 points)(20 points): The measure plan -60 points(2) as a result of evaluation on the 6th evaluation of the plan: Removal from position -61 points to 85 points(20 points): Continuous work assistant support group -86 points(issuance of placement to another department).

Ⅱ. Removal from position (the second phase).

2. A person who did not appear to change the changed form despite the measures taken in the first stage of the subject, and who lacks ability to perform his/her duties, or whose performance record is extremely poor;

4. Granting at least two special research tasks for major policies, such as education and training within the period of dismissal from position, and provision of special research tasks: At least two cases per week, and education for duties and mental education, if necessary;

7. In cases where he/she is expected to perform his/her duties and improve work performance within the period of dismissal from position: Measures for one-stage measure (work for assistant support team) taken by a person who is at least 86 points as a result of the evaluation of special research tasks;

○ In the event that there is no job performance or performance improvement or it is impossible to expect the improvement within the period of removal from position: A person who is less than 85 points as a result of the evaluation of special research tasks ? ex officio dismissal;

2. Persons subject to ex officio dismissal: Persons who are unable to expect the improvement of their job performance or service performance, notwithstanding the measures in two stages;

IV Expected effects. To enhance the growth and competitiveness and productivity of the organization, to create an atmosphere that is very strong to work, to create an active and solid workplace atmosphere, and to effectively respond to new administrative demand.

(B) The plaintiff carried out 12 times of cleaning, 43 times of document arrangement, 2 times of field investigation, Gu administration research, etc. When working as the above work support team, the plaintiff's work status as the work support team for the plaintiff was stated as follows: "In short of harmony as of March 9, 2007, the plaintiff's work status as the work support team for the plaintiff is not well implemented," "in the first place as of March 13, 2007," "in the second place as of March 22, 2007," "in the first place as of March 22, 2007," "in the first place as of June 26, 2007, in cooperation, is likely to be difficult to cooperate, or fail to cooperate with each other."

On March 6, 2007, when working in the Business Support Team, the Plaintiff was refused to provide 50,000 won for each check to the Auditor on the 20th of the same month, and to the Auditor on the 20th of the same month.

On June 18, 2007, the defendant evaluated work performance for the workers of the work support team, and thereby dismissed the plaintiff, environmental sanitation and health class 7 B, traffic administration and administrative class 6 C, whose work performance is less than 60 points, and among them, for C, work performance was adjusted on September 10, 2007 on the ground that work performance was improved 24.8 points compared to work performance of the work support team during the period of dismissal.

(3) Other facts of recognition

From March 30, 2005 to August 31, 2006, the Plaintiff filed a civil petition with the Plaintiff several times on the grounds of influencies, such as influence of duties from civil petitioners and annoying and annoying manner, while serving in the register of the Gu office and the field civil petition office.

In the case of local public officials belonging to the defendant, the criteria for screening personnel for promotion from Grade VII to Grade VI are in accordance with the collective agreement that reflects 70% of the work performance rating and 30% of the multi-level evaluation. The plaintiff's work performance rating assessed by the department to which the defendant belongs was low and failed to be subject to promotion. 8 employees who were promoted to Grade VII in 1989 as the plaintiff among the public officials belonging to the defendant were promoted from 1999 to 6 in 2003, and the plaintiff could not be promoted to Grade VI in the 18-year period prior to the disposition in this case. The statement submitted by the plaintiff to the Busan Metropolitan City Appeals Commission for appeal seeking the cancellation of removal from position of the plaintiff on June 18, 2007 is the same as the written statement submitted by the chief of the "general secretary", and stated that he must demand what he must demand.

【Reasons for Recognition】

D. Determination

(1) Judgment on the Plaintiff’s first assertion

Except as otherwise provided for in Acts and subordinate statutes, Article 30-5 (1) of the Local Public Officials Act provides that "a certain position corresponding to the class shall be assigned in consideration of the class and occupation of the public official under his/her jurisdiction," and Article 30-5 (2) provides that "a public official under his/her jurisdiction shall be appointed to a proper position in consideration of his/her major training experience, specialty, aptitude, etc. In such cases, matters necessary for the standards for the standards for the management of assignment shall be determined by Presidential Decree." Article 7 (2) of the Decree on the Appointment of Local Public Officials provides that "a public official under his/her jurisdiction may prepare and utilize a duty assessment report to assess the requirements for the assignment of positions, taking into consideration the following requirements for the duties and the personnel requirements of the public official under his/her jurisdiction." In this case, Article 30-5 (1) of the Local Public Officials Act provides that "a public official under his/her jurisdiction may prepare and utilize a duty assessment report to recover his/her position, such as the kind and expertise of his/her duties, required level of skills, and skills of the public official under his/her jurisdiction.

In addition to the above-mentioned facts, the disposition against the plaintiff was taken on the ground that the plaintiff lacks ability to perform his duties or poor work performance under Article 65-3 (1) 1 of the Local Public Officials Act and the plaintiff's waiting order under Article 65-3 (3) of the Local Public Officials Act constitutes a case where it is difficult for the plaintiff to expect improvement of his ability or work performance during that period. Thus, the disposition of this case cannot be deemed unlawful as a matter of course on the ground that the work assistance team's work performance order against the plaintiff is unlawful since it is not based on the evaluation results of the work assistance team's work performance. The work assistance team's work order against the plaintiff is an exercise of personnel rights based on the right of appointment of the appointment authority, other than the disciplinary action against the public official, and the defendant, who is the appointment authority, can immediately be subject to the disposition of dismissal from position, and at the same time, it is hard to see that the plaintiff's basic work assistance team's work performance improvement and its work performance order cannot be deemed unlawful for the plaintiff.

Therefore, the plaintiff's first argument is without merit.

(2) Judgment on the second assertion by the Plaintiff

In light of the above facts, even if the plaintiff did not maintain a smooth relationship with his/her faculty members during the period of service as a public official belonging to the defendant, he/she filed a non-discriminatory petition with the administrative agency, etc. without any grounds, thereby impairing the honor of his/her faculty members, and furthermore, on September 13, 2005, he/she filed an application for 1 million won with the Minister of Strategy and Finance, and thereby, took an emergency action, such as saving and sealing a postal money order of 1 million won, and accordingly, he/she was subject to disciplinary action for 1 month of his/her salary reduction. From the civil petitioners, a civil petition was filed several times on the ground of the plaintiff's infinite and infinite ability. Since the plaintiff did not follow his/her assigned duties even during the period of his/her work assistant, he/she tried to provide money and valuables to the General Director, etc., who is the main body of evaluation, and did not have any other reasons such as the plaintiff's dismissal from his/her position for 6 years after dismissal.

Therefore, this part of the plaintiff's assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

The effects of the presiding judge and judges;

Judges Park Jong-sung

Judges Park Gin-uri