2018 Gohap52377 Nullification of dismissal

A

Law Firm Woo, Attorney Park In-bok

Attorney Kim Sung-jin

B Stock Company

Law Firm Sound, Attorney Park So-young

Attorney Park Jin-jin and Park Jong-chul

November 2018, 15

December 20, 2018

1. The plaintiff's claim is dismissed.

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

On November 26, 2017, the Defendant confirmed that the dismissal against the Plaintiff on November 26, 2017 is null and void.

1. Basic facts

A. The relationship between the parties

1) The defendant is an express bus company.

2) The Plaintiff served as the Defendant’s express bus driver from September 17, 2004.

B. The instant traffic accident

1) On August 24, 2017, the Plaintiff: (a) driving an express bus of the Defendant, Gwangju, on the basis of Ulsan around 06:45, the Plaintiff: (b) driving the express bus of the Defendant; (c) caused a traffic accident around 08:00 (hereinafter “instant accident”). Due to the instant accident, 19 persons, 3 persons were in heavy interest. (d)

2) Accordingly, on September 25, 2017, the Defendant rendered the instant disposition of suspending service on the ground of the instant accident to the Plaintiff for five months (from September 27, 2017 to February 26, 2018) (Evidence A3) (hereinafter “instant disposition of suspending service on the part of the Plaintiff”). The instant disposition of revoking the license and the instant disposition of dismissing the Plaintiff accordingly.

1) On November 26, 2017, the Commissioner of Do Police Agency revoked the Plaintiff’s driver’s license on the ground of the instant accident (hereinafter “instant revocation disposition”) (Evidence A No. 4).

2) Since the Defendant revoked the Plaintiff’s driver’s license on November 201, 2017, the Defendant notified the Plaintiff that “the Plaintiff was automatically retired pursuant to Article 67(2)6 of the Rules of Employment (hereinafter “instant ipso facto retirement provision”) that the Plaintiff was automatically dismissed (hereinafter “instant dismissal”).

D. Revocation of the instant revocation disposition

When the Plaintiff filed an objection to the revocation of the above driver's license, the Commissioner of the Local Police Agency of Do Police Agency accepted the above objection on February 26, 2018, and changed the above revocation to the suspension of driver's license (110 days) (Evidence A5) (Evidence A5).

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, 4, 5, Eul evidence 1, the purport of the whole pleadings

2. Determination on the cause of the claim

A. The plaintiff's assertion

1) Absence of grounds for dismissal

The plaintiff was revoked a driver's license by the revocation disposition of this case during the period of suspension of service of this case for which the plaintiff did not have a duty to provide labor to the defendant. Since the revocation disposition of this case was revoked, it cannot be deemed that the plaintiff has a ground for ipso facto retirement as provided in the provisions

(ii) abuse of discretion;

A) The Defendant’s immediately dismissed the Plaintiff on the day when the instant revocation disposition was issued violates the Plaintiff’s duty of care.

B) The Defendant dismissed the Plaintiff on the ground that the Plaintiff had been led to trade union activities even though it was well aware that the instant revocation disposition may be revoked.

C) Therefore, the instant dismissal disposition is null and void by abusing the right to discipline.

B. As to the non-existence of grounds for dismissal

1) Relevant legal principles

The purpose of this case is to say that the driver's license of this case is revoked on the ground of the Defendant's nature that the driver's license of this case is revoked on the ground that the driver's license of this case cannot be continuously employed due to the fact that the driver's license of this case is revoked on the ground that the driver's license of this case constitutes grounds for dismissal. Therefore, as long as the Defendant did not provide the Defendant with labor on the ground of this case on the ground of this case's ipso facto retirement provision, the driver's license of this case was revoked on the ground of this case's revocation during the suspension period of the service of this case during which the Plaintiff was not obliged to provide the Defendant with labor, or even if the revocation disposition of this case was revoked on the ground that it was retroactively invalidated, the dismissal disposition of this case cannot be deemed null and void at the time of the dismissal (see Supreme Court Decision 93Da43866, Dec. 21,

A) The fact that the driver’s license of a member working on board has been revoked is that it is not possible to continue to employ a member working on board whose driver’s license has been revoked due to the Defendant’s nature of the express bus company.

B) Notwithstanding the fact that the instant revocation disposition could not be revoked, it cannot be said that the Defendant’s driver’s license was revoked and the Defendant continued to pay the Plaintiff who is practically unable to input into driving service, and that the instant revocation disposition is revoked.

C) Since the revocation of the instant revocation disposition has been revoked, if the dismissal disposition in this case becomes null and void, and the Plaintiff is re-re-exploited, it would lead to an unreasonable conclusion that the Defendant should continue to maintain necessary human resources outside the prescribed number where the Defendant dismissed the Plaintiff under the rules of employment with the belief that the Plaintiff’s driver’s license has been revoked and employs another worker.

2) Sub-committee

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

C. As to the assertion of deviation and abuse of discretionary power

1) Relevant legal principles

A) Dismissal may be justified only in cases where there are grounds for an employer to the extent that the employer is not able to continue the employment relationship with the worker under social norms. The dismissal should be determined by comprehensively taking into account various circumstances, including the purpose and nature of the employer’s business, the circumstances of the workplace, the contents of the work in charge of the worker’s status, the motive and background of the act of misconduct, the impact on the company’s business order, such as the risk of impeding the company’s deceptive order, and the attitude of the past work (see, e.g., Supreme Court Decisions 2001Du10455, May 28, 2002; 2001Du8018, Jul. 8, 2003).

B) In principle, when a disciplinary measure is taken against a worker due to a cause for disciplinary action, the person having the authority to take the disciplinary action shall be held at the discretion of the person having the authority to take the disciplinary action. Therefore, in order to be illegal, the disciplinary measure that the person having the authority to take the disciplinary action exercises the authority to take the disciplinary action as it considerably lacks validity under the social norms. If it is deemed that the disciplinary measure has considerably lost validity under the social norms, it shall be deemed that it is objectively unreasonable in light of the characteristics of the job, the content and nature of the wrongful act constituting the ground for the disciplinary action, the purpose of achieving the disciplinary measure by the disciplinary action, and various circumstances incidental thereto (see, e.g., Supreme Court Decision 2006Da33999, Dec. 28, 2007).

2) Specific determination

Examining the facts as seen in Paragraph (1) and the following circumstances revealed through the evidence examined by the court in light of the above legal principles, the dismissal of this case constitutes grounds for the Plaintiff to the extent that the employment relationship cannot be continued under the social norms, and thus, its legitimacy can be recognized. It is difficult to view that the dismissal of this case has considerably lost validity under the social norms.

The plaintiff's assertion on this part is without merit.

A) The evidence submitted by the Plaintiff alone is insufficient to recognize the fact that the Defendant dismissed the Plaintiff on the ground that the Defendant was leading trade union activities even though it was well aware that the revocation of the instant revocation disposition may be revoked, and there is no other evidence to acknowledge this otherwise. (B) The Defendant is a high-speed bus company. The fact that the Plaintiff, who is a high-speed bus driver, has continued to work despite the revocation of the instant driver’s license due to the instant traffic accident, may have a significant impact on the Defendant’s external credibility, the psychological stability of users, the atmosphere of other drivers’ work, and the lectures in the company.

C) Since the Plaintiff joined the Defendant and continued to work as an express bus driver, the holding of a driver’s license is the minimum requirement to maintain the Defendant’s status of workers.

D) Even though 19 persons are aware that a bus engineer who has caused a heavy traffic accident by 19 persons and 3 persons are driving a bus, there is no passenger who is willing to board the bus.

3. Conclusion

Ultimately, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the whole judge defects

Judges Park Byung-il

Judges Park Dong-chul

1) Eight pages of preparatory documents submitted by the Plaintiff on July 10, 2018