2012 Gohap36498 Nullification, etc. of dismissal

1. A;

2. B

C. Stock Company

October 23, 2013

November 13, 2013

1. The Defendant’s disposition of dismissal against the Plaintiff A on February 21, 2012 confirms that it is null and void.

2. The plaintiff B's claim is dismissed.

3. Of the litigation costs, the part arising between the Plaintiff A and the Defendant is assessed against the Defendant, and the part arising between the Plaintiff B and the Defendant is assessed against the Plaintiff, respectively.

The main text of Paragraph 1 and the defendant confirmed that the disciplinary action against the plaintiff B during the three-month suspension period against the plaintiff B on February 21, 2012 is null and void.

1. Basic facts

A. The defendant is a juristic person established on December 1, 1993 and engaged in automobile parts manufacturing business using 610 full-time workers. The plaintiff A is a worker who was employed by the defendant on March 18, 1996, and the plaintiff B is a worker who was employed by the defendant on January 23, 1995.

B. On December 10, 2011, the Plaintiff A was elected as the branch chairperson of the Daejeonbuk Branch C branch of the World Trade Union (hereinafter referred to as the “branch”) and the Plaintiff B was elected as the branch head of the branch office on the same day. The Defendant’s Disciplinary Committee shall take disciplinary measures against Plaintiff A on February 15, 2012 and shall take three months of suspension from office against Plaintiff B on February 17, 2012, and sent the grounds for disciplinary measures to the Plaintiffs on February 17, 2012. The grounds for such disciplinary measures are ① order to not work at night on December 29, 201; ② order to prevent members from engaging in work at night on December 30, 2011; ③ Order to refuse to work at night on December 17, 2011; ③ Order to refuse to work at night on December 14, 2011; ③ Order to refuse to work at night on June 16, 2012; ③ Order to refuse work at night.

D. On February 21, 2012, the Defendant took disciplinary action again against the Plaintiffs as of February 21, 2012, against Plaintiff A, and notified Plaintiff B of disciplinary action to be punished by three months of suspension from office (from February 21, 2012 to May 20, 2012). The grounds for disciplinary action attached to the notice are as follows.

1. The above 1. From 196, 3, and 18. Members of the 10th 2nd 2nd 2nd 1st 2nd 2nd 1st 2nd 2nd 1st 2nd 1st 201, to 3th 10th 2nd 1st 2nd 2nd 1st 201, to prevent members from participating in the 1st 2nd 1st 2nd 1st 2nd 2nd 1st 3th 201, to prevent them from participating in the 1st 2nd 1st 2nd 2nd 1st 2nd 2nd 1st 201, to prevent them from interfering with the operation of the 1st 2nd 3rd 2nd 1st 2nd 3rd 2nd 1st 201, to prevent them from interfering with the operation of the 1st 2nd 3rd 2nd 1st 2011.

8. The above actions in paragraphs 2 through 7 above shall be conducted by the members of the 10th quarter of 201 with respect to the special bonus, etc. which is the agenda of the labor-management council. It shall not be subject to industrial action in terms of legitimacy, but shall not be justified in terms of procedural justification by failing to go through conciliation procedures and vote for industrial action. It shall be against the important order of service under subparagraphs 13 and 14 of Article 75 of the Rules of Employment. The above actions of the 10th anniversary of the company's demand to withdraw guidelines through several interviews and suspend illegal activities, and shall not interfere with the operation of the 10th quarter of 20th 1st 2nd 2nd 3rd 1st 2nd 1st 2nd 2nd 1st 1st 3th 2nd 2nd 1st 1st 3rd 2nd 2nd 1st 2nd 1st 1st 3th 2nd 2nd 2nd 3th 1st 3th 2nd 3th 3th 2nd 3th 2nd 3rd 2nd 3

1. 10. 14. 14. 15. 17. 1. 1. 14. 1. 1. 1. 1. 1. 1. 1. 1. members participating in the work of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the branch of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative of the cooperative.

E. The defendant's rules of employment and collective agreement concerning this case are listed in the annexed sheet.

【Uncontentious facts, Eul’s evidence No. 1-2, Eul’s evidence No. 2, Eul’s evidence No. 3-1, 2, Eul’s evidence No. 4-1, 2, Eul’s evidence No. 61, Eul’s evidence No. 11 and 12, and the purport of the whole pleadings;

A. Summary of the plaintiffs' assertion

The Defendant’s respective disciplinary measures against the Plaintiffs do not have grounds for disciplinary action for the following reasons, and even if there exist grounds for disciplinary action, they are invalid because they deviate from the scope of discretion in disciplinary action, which is without justifiable grounds.

1) Plaintiff A

A) Disciplinary Reason ①: (1) The fact that he/she was informed on December 30, 201 that he/she had no duty to provide labor on a night basis; but this is based on the Defendant’s understanding that he/she had no duty to provide labor on the above date, and thus constitutes a

subsection (b) of this section.

B) Disciplinary reasons: (2) There is no fact that he/she interferes with the members who worked at night on December 30, 201 from participating in his/her duties.

C) Disciplinary grounds: (3) Since Article 53(1) of the Labor Standards Act limits overtime work within the limit of 12 hours per week, it cannot be readily concluded that Plaintiff A’s failure to voluntarily engage in holiday work on January 8, 2012 is based on the Plaintiff’s guidelines, taking into account the following: (a) it is merely a notification to its members that the said provision would violate the said provision in the case of Sundays special work; (b) the Defendant’s workplace’s holiday work was not deemed to have been conducted as a practice; and (c) 10 persons who agreed to holiday work on January 8, 2012, who worked on the day, worked and worked normally.

D) Disciplinary reasons: (a) Plaintiff A notified its members of the fact that “the remaining business and the special basis for the case exceeds 12 hours a week is illegal; (b) the remaining business and special donations are difficult to be deemed to be in accordance with the Plaintiff’s instructions; and (c) examining the contents of the note sent by the head of the factory F to its employees on January 19, 2012, the fact that the Defendant was the person who did not incur any loss in the above period despite the remaining business and non-participation of the members, it is difficult to take the grounds for disciplinary action.

E) Disciplinary reasons: (5) Plaintiff A merely expressed his/her intent in a peaceful manner on one side of the first floor of administrative affairs to request the Defendant to negotiate in good faith with respect to the payment of the performance-based bonus in 201, which is an issue between labor and management.

F) Disciplinary reasons: (6) On January 13, 2012, pursuant to Article 7 of the collective agreement, Plaintiff A notified the Defendant of the hours of education for union members from 11:30 to 12:30 on January 17, 2012. This is not a collective action but rather a collective action, and even if the Defendant was to collect the opinions of union members through the hours of education, it cannot be deemed grounds for disciplinary action since Plaintiff A refused it without notifying a certain time and place, and used the hours of education as notified by the trade union.

2) Plaintiff B

A) Disciplinary reasons ①, ② Plaintiff B does not interfere with the duty of the union members who worked for night duty.

B) Disciplinary reasons: (3) Plaintiff B did not have any farming nature in the street, and even if Plaintiff A participated in the street farming nature, it is inappropriate to consider Plaintiff A as grounds for disciplinary action, as alleged in the instant Plaintiff A’s grounds for disciplinary action fifth.

B. Determination as to the existence of grounds for disciplinary action

1) Facts of recognition

The following facts may be acknowledged, comprehensively taking into account the evidence No. 13-1, evidence No. 13-5, evidence No. 6, 8 through 14, 17, 21, 22, 23, 25, 26, 29 through 3, 44, 52, 55, 64, 71, 74, 78, 83, 84, and evidence No. 8-3, evidence No. 8-1, 2, and 3 of the evidence No. 9-1, 2, and 3:

A) In practice, the Defendant has made payment to his employees under the agreement at the labor-management council, but it did not reach an agreement on the piece rate in 201, and at the second labor-management council held on December 27, 2011, the Plaintiffs present on behalf of the instant sub-council at the time of paid leave or at the end of four hours before December 30, 201. However, the Defendant requested that the production be difficult, while the Defendant was working for up to 15:30 on December 12, 201 and operated as existing ones, and the workers were paid for six hours at night and two hours at night due to personal circumstances, and the workers were paid for two hours at night. Accordingly, the labor-management agreed that the “day of paid leave from December 31, 201 to December 31, 201,” and the “day of paid leave from December 31, 2012 to June 31, 2012.”

B) On December 30, 2011, Plaintiff A sent a text message to the members of the instant sub-council, stating, “The thickness of night association members according to the guidelines of the instant sub-council is no night attendance.” It is the title “the result of the labor-management consultation” with the family members at the end of the year. In addition, Plaintiff A expressed the Defendant’s position of “non-acceptance of confinement” for proposing the payment of special bonus for the achievement of the ideological maximum sales as an agenda of the association. In addition, on December 30, 201, Plaintiff A sent a public notice stating, “after the establishment of the cooperative’s passage before the closure of the union, no night union members do work,” and sent it on the bulletin board of the entrance of the association’s office.

C) If partners do not work at night, the defendant sent a text message to the union members that "if the union members do not work at night, it shall work at night." At night, the defendant requested that the union members stop illegal collective action twice at the instant sub-committee, and that "if the union members do not work at night, it shall work at night, by the company regulations." In addition, the defendant sent a letter to the effect that "if the union members do not work at night, it is obvious that the union members should withdraw the guidelines of the sub-committee and cooperate with the union members to engage in normal production activities."

D) On December 30, 201, 102 of 141, 141, 102 members of night workers did not work at work, and 39,000 members worked at work, but the number of workers who worked at work at work was small and so it was impossible to perform production work.

The part of the workers who worked at this time moved from the branch office of the Plaintiff B to the partnership office, and then leave after dividing the Plaintiff et al. with the Plaintiff et al. and dividing them into the partnership office, or immediately leaves the partnership office. The Defendant dealt with the annual leave for night workers who did not work at this day.

E) On January 5, 2012, the instant branch published the first guidelines for a trade union with the following contents as referred to in subparagraph 22 of the EE Act, a union newsletter. As a result, 45 members refused to work on holidays. At the same time, the Plaintiff B, upon the Defendant’s request, expressed the intent to take disciplinary action against the trade union when meeting G, H, and I, working in the labor union office to inform the workers in the management office who were temporarily posted to the production licensee of the mechanical operation method.

1. If 12 hours a week is more than 12 hours a week in accordance with the Labor Standards Act as an internal (6 days) part of the day is illegal, no more than 2 hours a day shall be allowed until a separate guideline is issued, and no more than on Sundays peculiar work shall be allowed.

2. On December 30, 191, it shall be regarded as an unfair labor practice with respect to abortion.

3. On December 30, 191, a company shall carry out legal procedures with respect to the management of its root.

F) On January 10, 2012, the instant branch presented guidelines to refuse to work overtime and holiday work (special work) after the completion of the fourth session of the labor-management council in the quarter of April 17:20 on April 10, 2011.

G) On January 11, 2012, “20 billion won” in Article 26 of the 2012. E., the instant branch, despite the fact that the maximum sales have been achieved since the establishment of the branch, “201 and 430 billion won,” was the result of efforts by all the employees including all the union members, the Defendant presented 100% of the encouragement and demanded that the Defendant submit a proposal for the payment of special bonus in accordance with the maximum sales performance since the formation of the branch. However, even at this time, the Defendant submitted a proposal for the payment of special bonus in accordance with the highest sales performance after the formation of the branch. However, at the same time, it is right to make a conclusion on the part of the union with respect to the union members who were in violation of the guidelines to be expressed in mind, and it is more possible for the union members to take part in the strike, but it is only the beginning of the division and our demand. The contents were distributed to all the union members by inserting the contents “Woo withdrawal from the special dispute.”

H) On the same day, the Plaintiff Company A, from the first floor of the Defendant Company’s office building, posted “the Defendant’s suspension of the Plaintiff’s carbon pressure” a banner and began agriculturality. On this day, the instant branch made it clear that the Plaintiff Company A’s entry into an indefinite farming nature from the company’s own seat to the end of the present situation in order to cause on-site pressure, to promote labor pressure pulverization and special commercial intervention.”

I) On January 1, 2012, the Defendant decided to pay 100% of encouragement money to achieve the goal in 2012 from J No. 3 to J No. 3 on December 12, 2012, and stated that it will be paid on the 16th of the same month.

(j) On January 12, 2012, the instant sub-chapters presented the following guidelines in supplement to the existing guidelines: “The management of the Defendant threatens union members on the grounds of the trade union’s guidelines, but the decision on remaining and peculiar circumstances is determined by the union members, so it cannot be held liable to union members that it does not engage in any remaining business and peculiar circumstances, and the trade union’s guidelines are valid without any change.”

1. Until a trade union has separate guidelines, compliance with legal labor and refusal of special assignment shall continue to exist.

2. To continue labor-management consultation through a delegated person, even if the representative director does not exist.

3.The farming nature of the branch of the sub-branch shall continue until the situation terminates.

4. On January 13, 2012, the full-time officer sent a letter to the Defendant on January 17, 2012 that he/she will use educational hours from 11:30 to 12:30 for the day of the week, and from the day of night, from 21:0 to 22:00 for the day of night, and distributed it to the union members, stating that "a public hearing by district is held to share the present situation" under Article 29 of the EE issued on the same day. Accordingly, on January 16, 2012, the Defendant requested the Plaintiff to use the union members' educational hours when he/she refuses overtime and holiday work until now, so the request to use the union members' educational hours does not comply with Article 7 subparagraphs 4 and 5 of the collective agreement." However, the Plaintiff sent to the Defendant that the time of production activities reduced may proceed after a certain consultation with the company. However, the Plaintiff notified the instant branch of the instant case.

(l) On January 16, 2012, the Defendant deposited 100% of the encouragement to its members. From January 17, 2012 to January 15:00, Plaintiff A urged the Defendant to change the attitude on the part of the Defendant, and started transplant. (m) On January 19, 2012, Plaintiff A on behalf of the instant branch, “the trade union would stop the strike of the union including the rain farming and short-term farming, and request the Defendant to resume labor-management consultation on January 27, 2012, and refused production and supply of the Plaintiff 1 to its members on the same day (from January 10, 201 to August 18, 2012) for a production period of 10 to 14th day (from January 27, 2012).

2) Judgment on Plaintiff A

A) According to the facts acknowledged earlier, the matters discussed at the labor-management council of December 27, 201 do not grant all the union members a full exemption from night work on December 30, 201, but rather, if a union member who does not work due to personal circumstances does not have any obligation to provide labor on the above date, it is merely a paid period of two hours. Therefore, contrary to the Plaintiff’s assertion, the Defendant’s understanding cannot be deemed that the Plaintiff did not have any obligation to provide labor on the above date. However, in the same circumstance, it cannot be said that the Plaintiff sent a text message to the effect that the Plaintiff did not work at night due to the exemption from night work, and posted the same contents on the bulletin board of the union’s office so that the Defendant does not work at night to a number exceeding the reasonable scope, and thus, it can be deemed that the Defendant’s act constitutes “a violation of the normal operation of the company’s business by inciting the union members” under Article 75 subparag. 13 of the Rules of Employment. 3 of the Defendant

B) With respect to the grounds for disciplinary action 2: (a) Plaintiff A had already been able to work with the above words, and the Plaintiff B had recommended the members who worked at the union office to stop their work under the pretext of a meeting; (b) but the members who immediately returned to the union without complying with this is also deemed as above. If there are circumstances, it can be known that the Plaintiff’s leaving the workplace without his/her operation is not due to the Plaintiffs’ invitation to attend the meeting, but due to the Plaintiff’s text message, etc., that the Plaintiff’s leaving the workplace was not due to the lack of the number of members who worked at the meeting, and thus, the Plaintiff’s additional work was hindered or interfered with the normal operation of the business. Accordingly, it is not justifiable to deem the Plaintiff’s member who worked at the meeting as separate grounds for disciplinary action from the above grounds for disciplinary action (i) as the grounds for disciplinary action is not justifiable.

C) With respect to the grounds for disciplinary action (3) : In full view of the overall purport of arguments in the statement No. 8-2 of the pleading, it appears that, even in the case of Sundays, even though many workers were not present at work, the Defendant is able to recognize the fact that workers were working at work when they are needed for their work under the premise that certain number of workers would work at work at work. In addition, in light of the facts acknowledged earlier, the Plaintiff’s presentation of the guidelines to the members that “I do not work at work at work at work in E and 22” constitutes overtime work exceeding 12 hours, not to raise the issue of illegality, but to accomplish the requirements of the branch of this case on special bonus, and it is reasonable in terms of the principle of Article 17 subparag. 15 of the Labor Standards Act to consider that the Defendant’s refusal to work at work at work at work at work at work at work at work at work on December 30, 2011 constitutes “the Defendant’s refusal to meet the requirements for the disciplinary action at work at work in question 97.”

D) In full view of the purport of the entire arguments and arguments as to the grounds for disciplinary action (4) : (a) the Defendant’s employees may engage in remaining work at 90% on a daily basis, barring any special circumstance; and (b) recognize the fact that a considerable number of workers are engaged in peculiar work on Sundays; (c) as seen earlier, certain workers are engaged in overtime work at the Defendant’s workplace. Therefore, in light of the aforementioned facts, it can be deemed that the Defendant’s employees are in practice in the Defendant’s workplace to ensure that the Plaintiff would not extend and extend holiday work to its members; (d) the Defendant’s employees would not be able to cooperate with the union members to give warning of their refusal to work on the remaining working hours; and (e) the Defendant’s employees would not be able to present any further guidelines to ensure that the Plaintiff’s employees would have been engaged in overtime work and holiday work for more than 12 hours on a daily basis; and (e) the Defendant’s employees would not be able to accept the Plaintiff’s demand for overtime work and holiday work.

E) Regarding the grounds for disciplinary action: As acknowledged earlier, it is reasonable that the Plaintiff A occupied the Defendant’s facilities without the Defendant’s permission and installed a banner, and the Defendant’s act of demonstration by attaching documents within the company’s facilities without the Defendant’s permission under Article 75 subparag. 14 of the Rules of Employment constitutes “the act of demonstration by attaching documents within the company’s facilities.” Thus, it is reasonable that the Defendant

F) As to the grounds for disciplinary action: According to Article 7(5) of the Defendant’s collective agreement, the education of union members shall be notified orally or in writing to the company at least three days prior to the implementation of education, and the date, time, and place shall be consulted with the company. Therefore, the determination of the implementation of education shall not require the Defendant’s consent. However, since the instant branch requires consultation with the company at the time, time, time, and place of education without reasonable grounds, the Defendant shall respect the Defendant’s opinion on the date, time, and place as well as legitimate union activities, unless the Defendant unfairly refuses consultation with the company. However, as seen earlier, the “share of the present situation” presented for the purpose of holding a public hearing is deemed to have been conducted for the purpose of collective refusal of overtime and holiday work, it is difficult to view it as legitimate union activities, and thus, it is difficult to view the Defendant’s request to reject the Plaintiff’s request for the implementation of the industrial action without any reasonable ground for obstruction of its operation.

3) Determination as to Plaintiff B

A) With respect to the grounds for disciplinary action ①: It is not reasonable to regard the above part as the grounds for disciplinary action, on the grounds the same as that of the Defendant A’s judgment on the grounds for disciplinary action.

B) With respect to grounds for disciplinary action ② As acknowledged earlier, the Plaintiff B demanded certain members who worked in the position of the head of the instant branch office to comply with the guidelines of the union, and delivered them to the producer the intent that they not remain in the production. It can be deemed that it was a way to continue an illegal industrial action, such as the collective refusal to provide overtime and holiday work, which was led by the instant branch office, constitutes “the act of hindering the normal operation of the company’s business by inciting members under Article 75 subparag. 13 of the Rules of Employment,” and therefore, it is justifiable to deem that the Defendant’s act as grounds for disciplinary action is justifiable.

C) As seen earlier, Article 27 of the E Act, which was issued by the branch of the instant case, states that the full-time officer of the branch of the instant case combined with the Plaintiff A, and in light of the fact that Plaintiff B, as the full-time officer of the branch of the instant case, is in the position of the secretary in charge of the practice of the cooperative activities, it can be inferred that Plaintiff B actively participated in the process of production and installation of banner for the Plaintiff’s agriculturality, even if Plaintiff B did not directly do so, and this constitutes “the act of carrying out demonstration by attaching documents within the company facilities without the permission of the Defendant’s company” under Article 75 subparag. 14 of the Rules of Employment. Thus, it is justifiable to deem that the Defendant’s act as grounds for disciplinary action is justifiable.

4) Sub-determination

Ultimately, it is reasonable that the Defendant made the Plaintiff A the grounds for disciplinary action (1), (3), (4), (6) and (6) as the grounds for disciplinary action. However, it is improper that the grounds for disciplinary action are the grounds for disciplinary action (2) and (3) as the grounds for disciplinary action against Plaintiff B, but it is improper that the grounds for disciplinary action (1) are the grounds for disciplinary action.

C. Determination as to whether disciplinary action is appropriate

1) Determination as to Plaintiff A

As seen earlier, most of the grounds for disciplinary action against Plaintiff A constitute grounds for disciplinary action based on the Defendant’s rules of employment. According to the Plaintiff’s evidence No. 13-1 to No. 4, it is recognized that the Plaintiff again went into an illegal industrial action such as this case despite the past record of disciplinary action. However, in light of the facts and evidence acknowledged earlier, the following circumstances, i.e., ① the Defendant discussed about partial paid labor of the non-exploss during night hours, i.e., the Defendant’s act of using the Plaintiff’s industrial action or providing labor for the non-explosive work, which was difficult to determine that the non-explosive workers were more than ordinary workers at the time of December 30, 2011. However, the Defendant’s act of refusing to enter and leave the industrial action constitutes an illegal industrial action, i.e., the Defendant’s act of refusing to use the Plaintiff’s industrial action or to provide labor for the non-explosive work, which led the Defendant to the extent of refusing to do so.

2) Determination as to Plaintiff B

Even if it is not recognized as the grounds for the disciplinary action against Plaintiff B, considering the degree of involvement in the industrial action against Plaintiff B in the remaining grounds for the disciplinary action, the status of Plaintiff B within the instant branch, and the degree of interference in the performance of the business that caused the Defendant, it is difficult to view that the three-month disciplinary action against Plaintiff B was an abuse of the right of disciplinary action, as it has considerably lost validity under the social norms.

D. Sub-determination

Ultimately, the dismissal against the plaintiff A is illegal and invalid, but the disciplinary action against the plaintiff B for three months of suspension is legitimate.

3. Conclusion

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

The judge of the presiding judge;

Judges Hong Jin-young

Judges Cho Hon

A person shall be appointed.

A person shall be appointed.