[1] Whether an employer may cancel his/her disciplinary action and take a new disciplinary action upon his/her own recognition of the defect in disciplinary proceedings (affirmative)

[2] The case holding that in a case where a worker, after the first disciplinary dismissal, made a second disciplinary dismissal for the reason that the employer voluntarily returned to the Labor Relations Commission, the employer's revocation of the first disciplinary dismissal and the second disciplinary dismissal for the reason that the employer was a new disciplinary dismissal for the first disciplinary dismissal, and the employee may claim wages that the employer would have been entitled to receive if the employer continued to work without the first disciplinary dismissal

[3] In the first disciplinary action, the case holding that the second disciplinary action may be deemed null and void due to procedural defects in the process of composition and resolution of the disciplinary committee, in a case where the representative director sent a notice of attendance and resolution to the worker under the name of the chairman of the disciplinary committee, and the second disciplinary action was taken by the chairman. On the other hand, the second disciplinary action was taken to the worker only under the name of the representative director, and the representative director did not attend the disciplinary committee

[1] The employer's disciplinary action against a worker is punished as a sanction against a worker's violation of corporate order, and the employer may also revoke the disciplinary action even in his/her own review procedure. Thus, if the employer recognizes that there is a defect in the disciplinary procedure, existence of a disciplinary cause, disciplinary action, etc., he/she may revoke the disciplinary action by himself/herself without any remedy order issued by the Labor Relations Commission or the court's judgment that

[2] In a case where, after the first disciplinary dismissal, an employee voluntarily reinstated the application for unfair dismissal to the Labor Relations Commission, and then again made a second disciplinary dismissal for other reasons without taking any procedure of dissatisfaction such as the procedure of reexamination in the determination of unfair dismissal made by the Labor Relations Commission, the case holding that, on the ground that the employer voluntarily revoked the first disciplinary dismissal and newly made the second disciplinary dismissal, the employee may claim wages that can be paid to the employer if he continued to work without the first disciplinary dismissal

[3] In the first disciplinary action, where the representative director sent a notice of attendance and resolution to the worker under the name of the chairperson of the disciplinary committee by stating that he is in the position of the chairperson of the disciplinary committee, and attended the disciplinary committee and takes charge of its proceeding as chairperson. On the other hand, in the second disciplinary action, the representative director is present only in the name of the representative director, and the representative director did not attend the disciplinary committee, the case holding that in the second disciplinary action, it cannot be determined that the representative director is the chairperson of the disciplinary committee in light of the fact that he did not attend the disciplinary committee, and even if he was the chairperson of the disciplinary committee, if he did not attend the disciplinary committee without delegation of his status and role or authority, the disciplinary committee does not proceed by the chairperson of the disciplinary committee, and therefore, the second disciplinary action shall be deemed invalid due to procedural defect

[1] Article 23(1) of the Labor Standards Act / [2] Article 23(1) of the Labor Standards Act / [3] Article 23(1) of the Labor Standards Act

[1] Supreme Court Decision 93Da26496 delivered on September 30, 1994 (Gong1994Ha, 2820) Supreme Court Decision 94Nu1132 delivered on December 27, 1994 (Gong195Sang, 705)

Plaintiff (Law Firm Gyeong & Yang, Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sejong, Attorneys Lee Dong-gu et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na33473 decided October 23, 2009

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

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

The employer’s disciplinary action against a worker is a punishment against a worker’s violation of corporate order, and the employer may also revoke the disciplinary action in itself. If the employer voluntarily acknowledges that there was a defect in the disciplinary procedure, existence of grounds for disciplinary action, disciplinary action, etc., the employer may voluntarily revoke the disciplinary action without remedy order issued by the Labor Relations Commission or a court’s judgment to nullify invalidity, and further, it is possible to take a new disciplinary action (see Supreme Court Decision 93Da26496, Sept. 30, 1994, etc.).

Comprehensively taking account of the adopted evidence, the court below acknowledged that on February 1, 2007, the plaintiff was subject to disciplinary action against the defendant on the grounds of abuse of authority, dismissal order, escape from work hours, etc. (hereinafter "the first disciplinary action"), and on March 2, 2007, the plaintiff filed an application for unfair dismissal with the Seoul Regional Labor Relations Commission. On April 28, 2007, the defendant issued an order of reinstatement to the plaintiff on May 7, 2007, when ordering the plaintiff to work until 09:00, the Seoul Regional Labor Relations Commission recognized that some grounds for disciplinary action against the plaintiff exist, but the first disciplinary action on May 2, 2007 was unfair, and the defendant did not object to the second disciplinary action on the ground that the plaintiff sought disciplinary action against the plaintiff on May 7, 2007, and thus dismissed the plaintiff's second disciplinary action on the ground that the plaintiff's act of disciplinary action was unfair.

However, in light of the various circumstances indicated in the above facts and records, i.e., the Defendant voluntarily reinstated the Plaintiff before the first disciplinary dismissal was made by the Seoul Regional Labor Relations Commission, and the first disciplinary dismissal was made by the Seoul Regional Labor Relations Commission that was unfair, and the Defendant did not comply with the procedure of a request for a retrial, etc., although the first disciplinary dismissal was made by the first disciplinary dismissal, the Defendant’s act of misconduct which was the ground for the first disciplinary dismissal was only two out of them, and the lower court recognized that the Defendant constituted the ground for the first disciplinary dismissal after the Plaintiff’s reinstatement was made by the first disciplinary dismissal, and other new reasons that were different from the ground for the first disciplinary dismissal after the Defendant’s reinstatement, it is sufficient to view that the Defendant would have made a second disciplinary dismissal after its first disciplinary dismissal is insufficient to recognize the ground for the first disciplinary dismissal or being unfair, and as such, the same applies to the case where the first disciplinary dismissal was revoked by the first disciplinary dismissal, and thus, the Plaintiff may request the Defendant to continue to receive wages without the first disciplinary dismissal.

Nevertheless, the court below's dismissal of this part of the plaintiff's claim based on the premise that the first disciplinary dismissal is effective, is erroneous in the misunderstanding of the parties' intentions and legal principles as to dismissal of disciplinary action, which affected the conclusion of the judgment.

The ground of appeal No. 1 pointing this out is with merit.

2. Regarding ground of appeal No. 2

This part of the ground of appeal is just an error in the selection of evidence and fact-finding which belong to the full power of the fact-finding court, and it cannot be deemed a legitimate ground of appeal, and even if examining the records in light of the records, it is acceptable to find and decide that the second ground of appeal exists.

The second ground of appeal is without merit.

3. As to the third ground for appeal

Dismissal shall be justified in cases where there are grounds for an employee’s responsibility to the extent that the employee’s employment relationship cannot be continued under the social norms. Whether it is impossible to continue the employee’s employment relationship with the employee should be determined by comprehensively examining various circumstances such as the purpose and nature of the employer’s business, the workplace’s status and the job in charge, the motive and background of the act of misconduct, the impact on the company’s corporate order such as the risk of disturbing the corporate deceptive order, and the previous attitude of work (see, e.g., Supreme Court Decision 2008Da53249, Jan. 30, 2009). On the other hand, if there are various kinds of suspicions of disciplinary action against the employee, whether it is appropriate to take disciplinary action against the employee should not be determined with one or some of such grounds, but with the overall reason that it is difficult to continue the employee’s employment relationship in light of the social norms (see, e.g., Supreme Court Decision 200Du1545, May 28, 2002).

In light of the above legal principles, it is justifiable for the court below to have determined that the second disciplinary dismissal disposition of this case cannot be deemed as a deviation from or abuse of the disciplinary discretion, on the grounds as stated in its reasoning.

The court below did not err in the misapprehension of legal principles as to disciplinary action, as alleged in the grounds of appeal.

The third ground of appeal is without merit.

4. As to the fourth ground for appeal

The plaintiff asserted that the second disciplinary dismissal from the preparatory document dated May 6, 2009, which was stated on May 6, 2009 on the date of the first pleading of the court below, was null and void due to procedural defect, but the court below did not make any decision on this matter.

According to the records, on May 23, 2007, the plaintiff was notified of the date, time and location of the disciplinary committee by the defendant representative director and explained the grounds for second disciplinary dismissal on May 29, 2007. The participant of the disciplinary committee was the non-party 1, non-party 2, who is the director in charge of re-election and personnel affairs of the plaintiff and the defendant, and the defendant, and the non-party 3, who is the regular director of the operational technology support center. However, the defendant disciplinary rules of Article 3(1) are composed of two or more heads of departments, including the chairperson, and the disciplinary committee is composed of two or more heads of departments, the representative director and the members of the disciplinary committee shall be appointed by the chairperson and the representative director of the disciplinary committee. In paragraph (3) of the same Article, a meeting of the disciplinary committee shall be convened and the chairperson shall be the chairperson of the committee. In the form of a standardized form, the first disciplinary action must be notified in the name of the representative director and the disciplinary resolution to the plaintiff.

In light of the fact that the defendant representative director sent a notice of attendance and a notice of dismissal to the plaintiff in the name of the defendant representative director in the second disciplinary dismissal, the defendant representative director may be deemed to have been the chairman of the disciplinary committee, but on the other hand, in light of the fact that the defendant representative director did not attend the disciplinary committee, it cannot be readily concluded that it is the same. Furthermore, even if the defendant representative director is the chairman of the disciplinary committee, if the defendant representative director, who is the chairman of the disciplinary committee, did not attend the disciplinary committee without delegation of the status and role of the chairman of the disciplinary committee or authority of the chairman of the disciplinary committee, the disciplinary committee is proceeding without the chairman of the disciplinary committee, and therefore, the second disciplinary dismissal is likely to be null and void

Therefore, the court below should have reviewed the second disciplinary dismissal, such as who was the chairperson of the disciplinary committee, who was the chairperson of the disciplinary committee, namely, whether the defendant representative director appointed another person as the chairperson of the disciplinary committee or whether the defendant representative director was the chairperson of the disciplinary committee. Unlike the first disciplinary dismissal, the court below did not send the notice of attendance and the notice of dismissal to the plaintiff in the name of the chairperson of the disciplinary committee, how the second disciplinary dismissal and the second disciplinary resolution were made, and omitted the judgment of the plaintiff's assertion that argued the existence of procedural defect itself.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the second disciplinary dismissal and procedural legitimacy, which affected the conclusion of the judgment.

The fourth ground of appeal pointing this out is with merit.

5. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)