(a) Whether absence from work without following the procedures prescribed by the rules of employment, etc. constitutes absence from work without permission;

(b) The meaning of the collective agreement provision that "if an objection is raised against a member's personnel measure, it shall be placed on the side of the union and in retrial";

(c) the effect of the initial disciplinary action, where the procedures for review are not implemented or there is a serious defect in the procedures for review.

(a) If the rules of employment, etc. provide that a report or permission shall be obtained in advance or approval after the occurrence of a disease or an unavoidable cause, absence without such procedures shall be deemed absence without permission;

B. In light of the fact that the collective agreement has a separate provision on personnel consultation and that there are several provisions on the relationship with a trade union in relation to the exercise of personnel rights, such as disciplinary action, such as the provision on prior notification, and that the personnel consultation provision mainly prevents a trade union from impeding the normal activities of a trade union due to the employer’s arbitrary exercise of disciplinary power against the executive officers of a trade union. On the other hand, in light of the fact that the purpose of the system is the relief procedure against a person subject to disciplinary action and the purpose of the system has been different, the meaning of the collective agreement provision that “if the principal or the union has raised an objection within 15 days from the date of the personnel consultation provision, the union and the union shall be deemed to be a person subject to disciplinary action against the person subject to disciplinary action in accordance with the agreement or the regulations, and if there is no provision on the participation of a trade union under the collective agreement, it shall be deemed that the party to the agreement and the union shall be present at least a representative of the trade union.

C. Reviewing the procedure of disciplinary action is a procedure for remedy or final determination of a disciplinary action, which is entirely a single disciplinary procedure, and the legitimacy of the procedure should be determined on the whole of the disciplinary procedure. Therefore, a disciplinary action shall be null and void, in a case where a new review procedure is not fully implemented or it is impossible to recognize the validity of a new review due to a serious defect in the review procedure, even if the original disciplinary action satisfies all the requirements.

Article 27 of the Labor Standards Act

A. Supreme Court Decision 87Meu541 delivered on April 27, 1990 (Gong1990, 1153). Supreme Court Decision 92Da18542 delivered on September 25, 1992 (Gong1992, 294) (Gong1992, 294). Supreme Court Decision 91Da36123 delivered on September 22, 1992 (Gong192, 2954), Supreme Court Decision 92Da4935 delivered on October 22, 1993 (Gong193Ha, 3151)

Plaintiff

1. The court below's decision is delivered with the assent of all participating Justices Kim Sung-chul et al., Counsel for the plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-appellant-appellant-appellee-appellant-appellant-appellee

Seoul High Court Decision 92Na39404 delivered on May 7, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the assertion regarding unauthorized absence:

A. The facts established by the lower judgment are as follows.

The plaintiff is an employee who works as a counter-air in the metal production division of the reorganization company, Inc. (hereinafter referred to as the defendant company for convenience). On October 10, 1990, the plaintiff heard that the white part died in the previous North Eup, notified the head of the agency in charge of writing for a clerical error in the previous Eup, and went to the front Eup on the same day on the same day without any contact, and the plaintiff was absent from office for 12,13,15 consecutive days on the 16th day of the same month without any contact (the day of October 11 of the same month is treated as a light leave pursuant to the collective agreement, and 14 days on Sundays).

Accordingly, on October 18, 1990, the defendant company had the personnel labor and the non-party 1, who is an employee, notify the plaintiff or the disciplinary committee for the plaintiff to investigate the reason for absence from office and the facts of disciplinary action before absence from office, etc., and hear the plaintiff's statement. On October 23, 1999, the defendant company held the disciplinary committee at least four times prior to the plaintiff's disciplinary action, and was absent from office for three consecutive days without a justifiable reason. The plaintiff was dismissed on the ground that he violated Article 18 and 17 of the collective agreement, Article 13-2, Article 17, Article 21-1, Article 3, Article 44 subparagraph 4, Article 15, and Article 51 of the Rules of Employment, and Article 51 of the Rules of Employment.

Article 18 of the collective agreement of the defendant company provides that a person who has no fixed attendance (paragraph (8) and a person who has been absent without permission for at least three consecutive days (paragraph (17) despite having been punished four or more times as a ground for dismissal of a member of the company. Article 21 of the Rules of Employment provides that a person who is absent due to illness or any other unavoidable cause shall be submitted in advance. A person who is absent from work at the time of absence due to an urgent cause shall contact the company within 12:00 on the day of absence, and a person who is absent without a prior report shall be deemed to be absent from work without permission for at least three consecutive days or at least seven consecutive days per month. Article 44 provides that a person who is absent from work without permission without permission for at least three consecutive days (paragraph (4)), Article 51 provides that a person who seriously disturbs the order and morals of the company by failing to comply with the regulations of the company on the basis of disciplinary dismissal (Article 10(1) and (2) of the Rules of Employment shall not be present (Article 1).

B. Based on the above facts, the court below held that the Plaintiff’s absence without permission for three consecutive days constitutes grounds for dismissal under Article 18 subparag. 17 of the collective agreement, Article 21 subparag. 3 and subparag. 4 of the Rules of Employment, and Article 44 subparag. 4 of the Rules of Employment, and that the Plaintiff’s absence without permission for frequent absence after his employment, etc. continues the same type of flight due to the Plaintiff’s failure to take disciplinary action, in light of the Plaintiff’s degree of good faith in light of the Plaintiff’s recovery from absence without permission, reasons, etc., and the Defendant company’s production process structure and its production department’s unauthorized absence without permission, etc., and that the Defendant’s disciplinary action in this case is just and it cannot be deemed null and void even if there was no sufficient opportunity

C. Examining the relevant evidence in comparison with the records, the above fact-finding and determination by the court below is just and acceptable, and if the procedures for the provision of disciplinary action to a person subject to disciplinary action, such as a collective agreement, are not prescribed, the disciplinary action does not become null and void, and if the rules of employment, etc. provide that if a person intends to be absent due to illness or an unavoidable reason, etc., he/she shall obtain prior report or permission or obtain ex post facto approval, the absence without such procedures shall be deemed absence without permission (see Supreme Court Decision 87Meu5451, Apr. 27, 1990). In so doing, there are no errors in the misapprehension of facts due to the violation of the rules of evidence or the misapprehension of legal principles as to unauthorized absence. The arguments are without merit.

2. As to the argument on the review of a disciplinary action:

A. According to the reasoning of the judgment below, the court below comprehensively based on the following evidence: Article 19 of the collective agreement of the defendant company provides that if the defendant company or the union raises an objection within 15 days from the date of taking personnel measures against the union members under this agreement or the regulations, the company will act as the union member and the retrial thereof; and on October 30, 1991, the plaintiff requested a retrial against the defendant company within 15 days from the date of the above dismissal; however, as there are no particular provisions in the collective agreement with regard to the procedure for retrial, the defendant company shall re-examine the legitimacy of disciplinary action under ordinary personnel management regulations of the defendant company without notifying the labor union of the above request for retrial or giving the union member an opportunity to participate in the consultation with the labor union, the defendant company shall hold a review committee while attending the meeting of the disciplinary committee as seen above, and determine that the above dismissal disposition is legitimate, or that the company shall not be subject to prior consultation or consultation with the labor union member's right to participate in the procedure for review, and shall not be subject to such prior notification.

B. However, even though the plaintiff's complaint (service on April 10, 191 to the defendant company), the defendant presented to the court the evidence Nos. 16-1 and 2 of the evidence Nos. 16-1 and 2, the document pertaining to the holding of the Review Committee and the report of the result to the court on January 20, 192, there is no minutes of the Review Committee, and the plaintiff did not give any notice of the facts or result of the holding of the Review Committee in advance or ex post facto, and the fact that the Review Committee stated that the distribution of the management personnel in charge of the defendant company's labor service as the witness of the defendant company was ambiguous (record 277 pages) was held (record 277 pages). In light of the above, it is difficult to find out whether the testimony of the witness No. 16-1 and 2, or the witness sai-young by the testimony of the Review Committee was held.

Furthermore, even if the Re-Examination Committee is held, there are separate provisions on personnel consultation in the collective agreement of the defendant company (Article 15(1) of the Organization Convention), and several provisions on relation with the exercise of personnel rights, such as disciplinary action, etc. (Article 15(2) and Article 17). The personnel consultation provision mainly aims to prevent a trade union from impeding its normal activities by exercising the employer's arbitrary disciplinary power against the executive officers of the trade union (see Supreme Court Decision 92Da18542 delivered on September 25, 192). In light of the fact that the purpose of the system is different from each other, "the company.... the representative of the union and its re-examination" cannot be viewed as a personnel consultation provision as the meaning of Article 19 of the above collective agreement, and if the above provisions are applied to the re-examination, it is reasonable to regard the part of the trade union as participating in the procedures of the defendant company.

If the meaning of the provision of Article 19 (Application for Retrial) of the above collective agreement is interpreted so, the review conducted without the participation of a trade union shall not be null and void due to a serious defect in the procedure.

C. In addition, the review procedure for a disciplinary action is a procedure for the relief or confirmation of a disciplinary action, which is conducted in full together with the original disciplinary procedure, and its legitimacy should be determined on the whole process (see, e.g., Supreme Court Decision 92Da36123, Sept. 22, 1992). Thus, a disciplinary action should be invalidated in a case where the original disciplinary action satisfies all the requirements, even if it does not comply with the review procedure, or where it is impossible to recognize its validity due to a serious defect in the review procedure.

In this case, even if the disciplinary action does not become null and void merely because it did not provide a person to be disciplined with an opportunity to defend himself/herself in the original disciplinary procedure, if the review procedure under the above collective agreement was not implemented at all or there were significant defects as seen earlier in the review procedure, the instant disciplinary action cannot be deemed null and void as it goes against the procedural justice.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the provisions on retrial under the collective agreement unless it is erroneous in the misapprehension of facts against the rules of evidence as to the review of disciplinary action, and there is a ground for appeal

3. Therefore, the plaintiff's appeal is with merit, and thus, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Lee Jae-soo (Presiding Justice)