2018Da25540 Nullification, etc. of dismissal

person

1. A;

2. B

3. C.

4. D;

5. E.

6. F;

7. G.

8. H;

9. I

10. J

11. K;

L Co.

Daegu High Court Decision 2013Na5528 Decided April 13, 2018

October 4, 2018

Of the part against the Defendant of the lower judgment, the part against Plaintiff A, B, C, F, and Plaintiff I is reversed, and that part of the case is remanded to the Daegu High Court.

All of the plaintiffs' appeals and defendant's remaining appeals are dismissed.

Of the costs of appeal, the costs of appeal between Plaintiff D, E, Plaintiff G, H, J, Plaintiff K and the Defendant are borne by each party.

The grounds of appeal are examined.

1. Regarding the plaintiffs' grounds of appeal

A. As to the assertion on collective agreements that serve as the basis for calculating accrued wages

The lower court, based on its stated reasoning, determined that the instant collective agreement should be calculated on the basis of the instant collective agreement, etc., on the following grounds: (a) the resolution on the appointment of executive officers among the second general assembly resolution is not null and void; and (b) the Defendant’s collective agreement in 2010 (hereinafter “instant collective agreement”) and subsequent collective agreement (hereinafter “instant collective agreement, etc.”) concluded with the 0 trade union making a structural change is valid; and (c) thus, the unpaid wage during

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine on the validity of Article 18 of the Trade Union and Labor Relations Adjustment Act, the general meeting of labor unions, the validity of collective agreements, and the interpretation of

B. As to the assertion regarding the retirement age of Plaintiffs A, B, C, Plaintiff F, and Plaintiff (hereinafter “Plaintiff A”)

(1) The lower court: (a) acknowledged the fact that the retirement age of workers prescribed by the collective agreement from July 1, 2010 to December 31, 2015, when the collective agreement was enforced in the Defendant’s workplace, was 58 years of age; (b) on the other hand, there is no evidence to deem that the Defendant agreed to maintain the employment relationship until the employee reaches 60 years of age; (b) rejected this portion of the Plaintiff’s assertion; and (c) on this premise, calculated wages (excluding special performance bonus) not paid by the Plaintiff et al. (excluding special performance bonus) from June 1, 2011 to the age limit of 58 as prescribed by the collective agreement. The allegation in the grounds of appeal disputing the fact-finding based on which the lower court’s determination was based in the grounds of appeal is erroneous by misapprehending the bounds of the principle of free evaluation of evidence, or by failing to exhaust all necessary deliberations in light of the evidence duly admitted.

C. As to the assertion on the application of Article 37(1) of the Labor Standards Act

The lower court deemed that the Plaintiffs claimed for the payment of damages for delay calculated in accordance with the interest rate prescribed by the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings with respect to unpaid wages during the period of the instant disciplinary action, and applied the statutory interest rate of 15% per annum as to the period from the day following the date of the lower judgment’s sentencing to the day of full payment.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine on Article 37(1) of the Labor Standards Act, contrary to what is alleged in

2. As to Defendant’s ground of appeal

A. As to the first ground for appeal

1) In a case where the rules of employment or collective agreement stipulate the grounds for disciplinary action, which kind of disciplinary action is determined as possible for the same reason, the discretion of the person having authority to take the disciplinary action belongs to the discretion of the person having authority to take the disciplinary action. Such discretion is not an arbitrary and convenient discretion of the person having authority to take the disciplinary action, but an adequate balance between the grounds for disciplinary action and the disciplinary action is required. Therefore, if it is recognized that the disciplinary action has been deemed to have been abused by social norms as it considerably lacks validity (see, e.g., Supreme Court Decision 2014Da9632, May 30, 2

2) The lower court determined that the instant disciplinary action was null and void on the grounds that the Defendant’s unfair labor practice had a significant impact on the Plaintiffs’ misconduct, which is the cause of the instant disciplinary action, and thus, it considerably lacks validity under social norms, thereby deviating from the scope of discretion of the person having authority to take the disciplinary action.

Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on disciplinary action, as otherwise alleged in the grounds of appeal.

B. As to the ground of appeal No. 2, as to whether the special performance and bonus constitutes wages to be paid during the period of the instant disciplinary action

1) When an employer’s unfair dismissal disposition is null and void or cancelled, the status as an employee who intends to be damaged has continued to exist, and the failure to provide labor between them is attributable to the employer. As such, the wage for which an employee may claim payment refers to the wage prescribed in Article 2 of the Labor Standards Act. As such, if the employer continues to and regularly pays as all the amount of money paid to an employee in compensation for his/her work and the employer is released from the obligation to pay under collective agreements, rules of employment, wage regulations, labor contracts, labor contracts, etc., regardless of the name thereof (see, e.g., Supreme Court Decision 2011Da20034, Feb. 9, 2012).

2) Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted, the lower court’s determination that the special performance bonus constitutes unpaid wages during the period of the instant disciplinary action is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine on wages that should be paid when a disciplinary action is invalidated, thereby adversely affecting the conclusion of the judgment. Of the grounds of appeal No. 2, the scope of payment of special performance bonus

(1) The lower court rejected the Defendant’s assertion that (1) the Plaintiffs would have received the same evaluation grade as the average evaluation grade of all workers by providing labor at least at least at the average level of workers belonging to the Defendant; (2) the Defendant is obligated to pay the Plaintiffs special performance-based bonus during the period of the instant disciplinary action; and (3) based on the circumstances indicated in its reasoning, the Plaintiffs’ assertion that the same evaluation grade should apply to employees belonging to passenger plant (AS) who belong to the department to which the Plaintiffs belong at the time of the instant disciplinary action. Of the grounds of appeal, the argument disputing the fact-finding based on which the lower court’s determination was based is merely an error of the adoption of evidence and the determination of evidence value, which are the basis for the lower court’s free evaluation evidence, and even if examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by failing to exhaust all necessary deliberations or by misapprehending the legal doctrine

D. As to the third ground for appeal

1) According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

① Each retirement date of the Plaintiff, etc. is December 31, 2014 (Plaintiff A), June 30, 2015 (Plaintiff B), June 30, 2015 (Plaintiff C), June 30, 2015 (Plaintiff C), December 31, 2014 (Plaintiff F), and December 31, 2015 (Plaintiff 1). ② The “standards for the payment of special performance and bonus” prepared by the Defendant under the instant collective agreement (hereinafter “instant standards”) provides that the special performance and bonus shall be paid only to the employed person at the time of payment (Articles 2 and 5(2)).

2) Examining the above facts in light of the relevant legal principles, since the employment relationship is terminated insofar as the Plaintiff’s retirement age reaches the retirement age of the Plaintiff, etc., barring special circumstances, the Defendant does not bear the obligation to pay the Plaintiff, etc. special performance-based bonus after each retirement age of the Plaintiff, etc. In such cases, the lower court should have calculated the unpaid special performance-based bonus and bonus to be paid to the Plaintiff, etc. during the instant disciplinary period by examining whether the Plaintiff, etc.’s retirement age was special and bonus paid before the retirement date compared with each

Nevertheless, the lower court, contrary to this, ordered the Plaintiff A and F to pay all of the special performance bonus, Plaintiff B, C, and Plaintiff I from 2011 to 2015 with respect to the special performance bonus, Plaintiff B, and Plaintiff I from 2011 to 2016. In so determining, the lower court erred by misapprehending the legal doctrine on the scope of wage payment when interpreting the instant standard and invalidation of disciplinary action, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the judgment below against the defendant against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiffs' appeal and the defendant's remaining appeals are dismissed. The costs of appeal between the plaintiffs except the plaintiff A and the defendant are assessed against each party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

The presiding judge shall keep the record of the Justice

Justices Lee Dong-won

Justices Park Jong-young

Justices Kim Gin-soo