[1] In case where an employer’s unfavorable measure such as dismissal without justifiable grounds takes effect after a certain period of time, the period of application for remedy against the unfavorable measure (=the date when the unfavorable measure takes effect)

[2] Whether the dismissal constitutes a case where a worker who has not expressed his/her intention to resign inevitably submits his/her written resignation (affirmative)

[3] The case holding that the employment contract is terminated in the form of voluntary dismissal as part of the reduction of human resources according to the government's management innovation plan, where the Rural Development Corporation decided some workers as the problem staff in selecting the person subject to restructuring without any reasonable and fair criteria and decided to resign them, and it does not correspond to the actual dismissal and does not meet the requirements for layoff due to managerial reasons

[1] According to Article 82(2) of the Labor Union and Labor Relations Adjustment Act, which applies mutatis mutandis under Article 33(1) and Article 33(2) of the Labor Standards Act, a request for remedy against unfavorable dismissal, etc. against an employee without any justifiable reason, shall be made within three months from the date of the act (the date of termination of the act), and where a disadvantage measure such as dismissal takes effect after a certain period of time, the above period shall be calculated from the date of entry into force.

[2] Even if an employer receives a written resignation from an employee and concludes an employment contract by taking the form of dismissal from a member who accepts the written resignation, if an employee who has no intention to resign inevitably submits a written resignation, it constitutes a dismissal as it actually terminates the employment contract by the employer’s unilateral intent.

[3] The case holding that where the Korea Rural Development Corporation has terminated the employment contract in the form of voluntary dismissal as part of the reduction of human resources according to the government's management innovation plan by determining some workers as the problem staff without any reasonable and fair criteria in selecting the person subject to restructuring, it shall not only constitute a substantial dismissal but also not meet the requirements for layoff due to business reasons

[1] Article 33(1) and (2) of the Labor Standards Act; Article 82(2) of the Labor Standards Act / [2] Article 30 of the Labor Standards Act; Article 107 of the Civil Act / [3] Articles 30 and 31 of the Labor Standards Act; Article 107 of the Civil Act

[1] Supreme Court Decision 95Nu11238 delivered on August 23, 1996 (Gong1996Ha, 2884) / [2] Supreme Court Decision 91Da38686 delivered on January 26, 1993 (Gong1993Sang, 845) Supreme Court Decision 95Nu7765 delivered on July 30, 1996 (Gong196Ha, 2684 delivered on August 29, 1997) Supreme Court Decision 97Da12006 delivered on August 29, 199 (Gong197Ha, 2859), Supreme Court Decision 200Da51919, 51926 delivered on January 19, 2001 (Gong201Sang, 5199)

Plaintiff

The Chairman of the National Labor Relations Commission

Korea Agricultural and Rural Infrastructure Corporation (Law Firm Maumba, Attorneys Choi Ho-ju et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Nu2470 delivered on November 15, 2001

The appeal is dismissed. The costs of appeal are assessed against the Intervenor joining the Defendant, and the remainder are assessed against the Defendant.

Defendant and Defendant’s Intervenor’s grounds of appeal are also examined.

1. As to whether the period for filing a lawsuit is expired

According to Article 82 (2) of the Labor Union and Labor Relations Adjustment Act, which applies mutatis mutandis under Article 33 (1) and (2) of the Labor Union and Labor Relations Adjustment Act, a request for remedy against unfavorable dismissal, etc. against an employee without any justifiable reason shall be made within three months from the date of the act (the date of termination of the act). If a disadvantage measure such as dismissal takes effect after a certain period of time, the above period shall be calculated from the date of entry into force.

In the same purport, the judgment of the court below that the plaintiff's application for unfair dismissal of this case filed within 3 months from September 30, 1999, which was the date of retirement of the plaintiff against the plaintiff, was legitimate is just, and there is no error of law by misunderstanding legal principles as to the period of application for unfair dismissal of this case as alleged in the ground of appeal.

2. As to the existence of intention to resign

Even if an employer receives a written resignation from an employee and completes an employment contract by taking the form of dismissal from a member, if an employee who has no intention to resign submits a written resignation without any choice but to do so, it shall be deemed that the employment contract is terminated by the employer’s unilateral intent and thus constitutes dismissal (see, e.g., Supreme Court Decisions 2000Da51919, 51926, Jan. 19, 200; 91Da38686, Jan. 26, 1993).

The court below acknowledged the facts as stated in its reasoning concerning the reason for dismissal of the plaintiff of the Agricultural and Fishing Villages Promotion Corporation, a telegraphic transfer of the defendant joining the defendant, and the reason for the dismissal of the plaintiff, and determined and publicly announced the personnel policy to dismiss the plaintiff of the problem under the agreement between labor and management and the resolution of the personnel committee, if the plaintiff does not submit his/her resignation, it was determined and publicly announced through the general affairs management office's standby order, dismissal from position, and pre-announcement of dismissal. The plaintiff was selected as the problem staff and prepared and submitted his/her resignation according to the repeated use of the above construction due to the plaintiff's failure to submit his/her resignation. In light of the circumstances stated in its reasoning, the court below determined that the plaintiff did not have the intention to resign, even if he/she did not have originally expressed his/her intention to dismiss, it would have been able to inevitably resign as a result of the plaintiff's submission of resignation, and it did not constitute a violation of the rules of evidence as alleged in the ground for appeal by the court below.

3. As to the justifiable reasons of dismissal

The court below acknowledged the facts as stated in its reasoning concerning the reason for the dismissal of the Plaintiff of the Rural Development Corporation and the reason for the disposal of the retirement, and found that the Rural Development Corporation has made considerable efforts to avoid dismissal by ordering the reduction of human resources pursuant to the management innovation plan of public enterprises from the government and by requiring the employees to resign in the form of voluntary retirement or voluntary retirement after consultation with the labor union. However, the court below determined that the above Corporation's selection of the Plaintiff as an employee should have determined reasonable and fair standards in order to reduce human resources, and that there was no objective reason to select the Plaintiff as an employee. In addition, in light of the circumstances of its decision, the high school personnel committee held to select the Plaintiff as an employee subject to ex officio dismissal under the agreement of the Restructuring Committee established by the labor-management agreement, even if there was no specific and objective evidence to select the Plaintiff as an employee subject to ex officio dismissal, including the Plaintiff unilaterally as an employee without additional deliberation or supplement of the supporting materials, and determined that the dismissal against the Plaintiff is a serious defect in the procedure.

In light of the records, the retirement disposition against the plaintiff does not meet the requirements for layoffs because it does not select a person subject to layoffs on reasonable and fair grounds for business management under the Labor Standards Act. Therefore, the decision of the court below to the same purport is just and acceptable, and there is no error of law by misunderstanding legal principles as to the legitimate grounds for dismissal, as alleged in the grounds for appeal.

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-dam (Presiding Justice)