2014Guhap1542 Revocation of Disposition of Imposing a non-performance penalty

Large Transport Corporation

Seoul Regional Labor Relations Commission

May 26, 2015

June 25, 2015

1. The Defendant’s decision to impose enforcement fines of KRW 10,000,000,000, which was paid by the Plaintiff on June 13, 2014, and the decision to impose enforcement fines of KRW 14,400,000, which was paid by the Defendant on the Plaintiff, shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The phrase " May 30, 2014," written in the written complaint, seems to be written in writing on June 13, 2014, in light of Gap evidence No. 1-1.

1. Details of the disposition;

A. On January 6, 2014, the Plaintiff’s worker A and B were absent without permission from July 1, 2013 to August 25, 2013 (hereinafter “Disciplinary Reason I”), and the Plaintiff dismissed A and B due to violation of legitimate business instructions (hereinafter “Disciplinary Reason II”). On January 13, 2014, the Plaintiff filed an application for remedy against unfair dismissal with the Defendant on each of the instant dismissal on March 10, 2014, and the Defendant filed an application for remedy with the National Labor Relations Commission for review on “A” and “B” and “the Plaintiff may receive wages if the Plaintiff were to have been reinstated to their original position within 30 days from the date of receipt of the Defendant’s written ruling, and the Plaintiff filed an application for remedy with the National Labor Relations Commission (hereinafter “the instant order”). However, the Plaintiff filed an application for remedy with the National Labor Relations Commission’s decision 2014.14.

B. The Plaintiff failed to comply with the instant order for remedy. On June 13, 2014, the Defendant rendered a decision imposing KRW 10,000,000 for the first time enforcement fine on the Plaintiff. Nevertheless, on January 5, 2015, the Defendant, who did not comply with the instant order for remedy, rendered a decision imposing KRW 14,40,000 for the second time enforcement fine on the Plaintiff (hereinafter collectively referred to as the “instant disposition”).

[Reasons for Recognition] Facts without dispute, entry of Gap evidence Nos. 1, 2, 3, 12 (including branch numbers), the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

From July 1, 2013 to August 25, 2013, A and B were absent from office without permission, and in concert C spreads false facts about the representative director of the Plaintiff, and instigates members of the Large Transport Workers' Union (hereinafter referred to as the "Large Transport Workers' Union") and violated legitimate business instructions by failing to comply with the Plaintiff representative director's demand for suspension of these acts. In light of this, the instant dismissal is legitimate as it is a ground for no longer maintaining employment relationship with A and B. The instant order of remedy issued on the premise that each of the instant dismissal is unfair. As such, the instant order of remedy based on the instant order of remedy is unlawful.

B. Determination

1) Whether grounds for disciplinary action are recognized

A) The facts that the grounds for disciplinary action A and B did not attend the Plaintiff company from July 1, 2013 to August 25, 2013, and even if they were to work, there is no dispute between the parties concerned that they did not continue to work for the Plaintiff company. In addition, in full view of the respective descriptions and arguments stated in Articles 4 and 5 of the collective agreement and the whole purport of arguments, the Plaintiff and the Plaintiff’s rules of employment Article 26(4) of the Mutual Agreement on the Mutual Aid for Large Transport Labor, and Article 81 subparag. 21 of the Rules of Employment provide that “if a worker is absent without permission for at least three days a month, the worker may be dismissed.” According to the above facts, it is reasonable to deem that A and B did not perform their essential duties under the contract by failing to provide the Plaintiff with labor between the two months and thus not performing their contractual duties, and that they committed acts falling under the grounds for dismissal under the collective agreement and the rules of employment.

Therefore, the grounds for disciplinary action A and B are recognized.

B) Grounds for disciplinary action 2

The Plaintiff asserted that, in concert A and B, spread false facts about the Plaintiff’s representative director, instigate members of the Korea-style Fisheries Association, and that the Plaintiff’s representative director failed to comply with the demands to suspend such act, and that the Plaintiff violated a legitimate order of business by failing to comply with the demands. However, each of the statements of evidence Nos. 12, 25, which correspond to the above allegations, is difficult to believe, and it is insufficient to recognize the above assertion solely with the descriptions of evidence Nos. 13 and 14, and there is no other evidence to prove otherwise, the Plaintiff’s assertion is without merit.

Therefore, the grounds for disciplinary action against A and B are not recognized.

2) Whether the amount of disciplinary action is appropriate

According to the above review, the Plaintiff may take disciplinary action against A and B on the ground that he/she provided labor to the Plaintiff during the period from July 1, 2013 to August 25, 2013. However, for the following reasons, it is reasonable to deem that the above action of A and B is a reason attributable to A and B, who is an employee, to the extent that it cannot continue to maintain the employment relationship with the Plaintiff, an employer under the social common sense. Therefore, it is difficult to deem that the dismissal of each of the instant cases is considerably unreasonable, and thus, the determination of disciplinary action of each of the instant dismissal is appropriate. Accordingly, the nature of each of the instant dismissal contracts concluded between A and B is that (i) the Plaintiff provided labor to the Plaintiff as taxi operation and the Plaintiff paid wages to A and B in return for that labor contract. However, both A and B did not provide labor to the Plaintiff. Accordingly, as long as the contract did not comply with the fundamental duty under the Labor Standards Act, barring special circumstances, the parties to the contract should be subject to the application of the Labor Standards Act.

2) The Defendant asserts to the effect that there exists a conflict between the Plaintiff Company and the Plaintiff Company, such as a case of accusation between the new and old trade union, and that such conflict had influenced the performance of the duties of the Plaintiff and B, and thus, it does not constitute a cause attributable to the A and B. However, on the ground that the conflict with the other trade union has occurred, it is not impossible to provide labor, but it is not impossible for A and B to provide labor, and the Plaintiff’s representative director to cope with the above conflict situation while continuing to work and to dispute the unfair act. Thus, it is difficult to deem that there is no cause attributable

3) Meanwhile, in a case where a collective agreement or rules of employment, etc. provides for dismissal, so long as it is not null and void as it violates Article 23(1) of the Labor Standards Act, the dismissal shall be deemed to be a dismissal with justifiable cause (see, e.g., Supreme Court Decision 90Meu25420, Mar. 27, 191). As seen earlier, Article 26(4) of the collective agreement on the mutual agreement between the Plaintiff and the large-scale Transport Workers and Article 81(21) of the Rules of Employment provide that a worker may be dismissed if the worker is absent without permission for at least three days a month. There are no circumstances to see that each of the above provisions violates Article 23(1) of the Labor Standards Act. However, there are no circumstances to see that the above provisions violate Article 23(1) of the Labor Standards Act. If so, A and B did not provide work for two months, which is a few times the period equivalent to “three days of the month” as stipulated in each of the above provisions.

4) In addition, the mere fact that there was no record of disciplinary action against A and B on the ground of absence from office without permission does not interfere with the determination that the amount of disciplinary action against each of the instant dismissal is appropriate. In addition, the theory of lawsuit is unreasonable

Each of the instant dismissal is lawful. Therefore, the instant remedy order issued on the premise that each of the instant dismissal is unfair, is unlawful, and thus, the instant remedy order based on the instant remedy order is unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

The presiding judge, judges and vice-ranking

Judges Kim Yong-han

Judges Seo-chul