[1] The validity of a disciplinary action in violation of the procedure that requires the disciplinary committee to notify the disciplinary committee of the date, time, and place within a certain period of time under the rules of employment (negative), and in a case where the disciplinary committee voluntarily made a sufficient explanation without raising any objection to the procedure for the disciplinary action, despite such procedural defect, whether the procedural defect is cured (affirmative)

[2] Whether the employer is liable to assert and prove the existence of justifiable grounds for dismissal of workers (=employer) and the degree of “certification of facts” necessary for civil or administrative litigation

[3] The standard for determining whether a dismissal disposition is justified, which is a requirement for recognizing the legitimacy of dismissal, “the extent that it is impossible to continue the employment relationship with the relevant worker”

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

[1] Supreme Court Decision 92Da5251 Decided July 16, 1993 (Gong1993Ha, 2286), Supreme Court Decision 95Nu6434 Decided October 13, 1995 (Gong1995Ha, 3804) / [2] Supreme Court Decision 2008Da6755 Decided October 28, 2010 (Gong2010Ha, 2141) (Gong2010Ha, 2141), Supreme Court Decision 2013Da13146 Decided January 29, 2015 / [3] Supreme Court Decision 2006Da48069 Decided November 23, 2006 (Gong207, 41) Supreme Court Decision 2013Du138139 Decided October 31, 2013

Bob Co., Ltd. (A&S Law, Attorneys Cho Young-ro et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and 3 others (Law Firm citizen, Attorneys Kim soo-soo et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2015Nu10351 decided September 24, 2015

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the defect in disciplinary procedure

A. If the rules of employment stipulate that the disciplinary committee must notify the disciplinary person of the date, time, and place of the disciplinary committee within a certain period of time, this is aimed at securing the objectivity and fairness of disciplinary action, and thus, the disciplinary action in violation of the procedure is not effective. However, if there are special circumstances that the person under disciplinary action voluntarily appeared in the personnel committee for disciplinary action and sufficiently vindicates the person under disciplinary action without raising any objection to the procedure for notification of attendance, the procedural defect shall be cured (see Supreme Court Decisions 92Da5251 delivered on July 16, 1993; 95Nu6434 delivered on October 13, 1995, etc.).

Examining the record in light of the above legal principles, Article 16(1) of the Plaintiff Company’s Disciplinary Guidelines provides that “The disciplinary action shall be deliberated by the personnel committee, and the personnel committee shall notify the relevant employee of the personal information of the subject, the details of misconduct, and the date, time, and place of the meeting of the personnel committee at least three days prior to the meeting of the personnel committee (hereinafter “the personnel committee in this case”). The Plaintiff Company violated the above disciplinary guidelines by notifying the Intervenor joining the Intervenor (hereinafter “the Intervenor”) of the fact of the meeting on August 5, 2013. However, the Intervenor’s procedural defect is cured so long as the Intervenor was sufficiently present at the meeting of the personnel committee in this case and sufficiently vindicateed or gave up his opportunity to vindicate. Thus, it is difficult to view that each of the disciplinary measures in this case against the Intervenor was invalid. Even if the lower court did not explicitly state any defect in the disciplinary proceedings after the opening of the personnel committee in this case, it did not affect the conclusion of the judgment, contrary to what is alleged in the grounds for appeal.

B. Article 17 subparag. 2 of the Disciplinary Guidelines of the Plaintiff Company provides that "no person directly or indirectly related to the grounds for the disciplinary action shall participate in the deliberation of the disciplinary action." In this context, "a person directly or indirectly related to the grounds for the disciplinary action" does not refer to all persons related to the grounds for the relevant disciplinary action, but refers to the direct victim of the act corresponding to the specific grounds for the disciplinary action (see Supreme Court Decision 94Da59882, Apr. 28, 1995, etc.).

Examining the record in light of the above legal principles, Nonparty 1, Nonparty 2, and Nonparty 3, the head of the security1 team, the chairman of the personnel committee in this case, Nonparty 2, and Nonparty 3, the members of the security4 team in this case, were subject to disciplinary action against the Intervenor on September 2013 due to neglect of supervision and supervision over the Intervenor, which was the grounds for disciplinary action against the Intervenor, and cannot be deemed as the direct victim due to the Intervenor’s misconduct. Thus, it cannot be deemed as the “person having direct or indirect relation with the grounds for exclusion,” which is the grounds for exclusion under Article 17 subparag. 2 of the punishment guidelines. Even if the Plaintiff participated in the personnel committee in this case as the chairman and the member, it cannot be said that there was any error in the procedure. Although the lower court did not expressly determine the Intervenor’s assertion that there was a defect in the composition of the personnel committee in this case, it did not err in the misapprehension of judgment, etc., as alleged in the grounds for appeal.

2. As to the grounds of appeal on the grounds of disciplinary action and legitimacy of disciplinary action

A. The lower court, on the following grounds, determined that the instant disciplinary dismissal disposition against the Intervenor was justifiable, and that the instant disciplinary dismissal disposition belongs to the scope of the Plaintiff Company’s right to discretion in disciplinary action, and thus, constitutes dismissal with justifiable grounds.

(1) The Intervenor was a security worker belonging to the Plaintiff Company that performs the duty of protection and guard within the steel mill operated by scco (hereinafter “Scco”), and the Intervenor did not conduct an inspection or search of scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s 1stm 13th m scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s scco’s s (hereinafter “instant scco’s scco’s scco’s scco’s s scco’s s scco’s s s s s sc.

(2) In the first place of the 7th century, vehicles passing through the 7th dump truck can easily be seen, vehicles passing through the 50dB-5dB noise while passing through the 7th 7th dump truck, thereby making it possible to understand vehicle traffic. The 7th dump truck in the Intervenor was inspected by the 7th dump truck in the current situation register, but the dump truck was not inspected by the dump truck in the beginning of the 7th dump truck, but it was extremely rare for the employees, including the Intervenor, to pass the dump truck in the case of this case without inspecting the dump truck in their different perspectives from each other. In light of the above, all of the intervenors did not have any negligence to the extent that they knew about the passage of the dump truck in this case at the time of the release of this case.

(3) The Intervenor intentionally neglected his duties, or neglected to perform the duty of carrying-out control of goods or the duty of inspection and search of vehicles, which are the main duties of the Intervenor, constitutes “the case where the Intervenor’s intent is extremely severe or intentional.” In full view of the Intervenor’s duties, the degree of the Plaintiff Company’s losses, and the Intervenor’s actions for the indefinite entry suspension from Spanco, the Intervenor’s misconduct led to the extent that the Plaintiff Company cannot no longer maintain labor contract relations with the Intervenor by social norms.

B. However, the lower court’s determination is difficult to accept for the following reasons.

(1) First, we cannot accept the judgment of the court below that the Intervenor had dolusence to the extent that he knew that the Intervenor passed the instant dump truck at the time of the instant release accident, for the following reasons.

(A) The employer’s dismissal of workers shall be null and void (Article 23 of the Labor Standards Act), and the employer must assert and prove that there is such justifiable reason (see, e.g., Supreme Court Decision 2013Da13146, Jan. 29, 2015). Moreover, in civil or administrative litigation, the proof of fact is not a natural scientific proof that is not a suspicion, but a comprehensive examination of all the evidence in light of the empirical rule, barring special circumstances, and the determination requires a high probability that there is a fact that there is a fact in light of the empirical rule, and the determination requires that the ordinary person be free from suspicion (see, e.g., Supreme Court Decision 2008Da6755, Oct. 28, 2010).

(B) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① From June 19, 2013 to June 7, 2013, the date of the instant construction site’s shipment of scrap metal to the outside is 14 days, 19 days, 25 days, and 28 days, and the number of withdrawal is 11 times in total. Among the Defendant’s Intervenor 1, Defendant 3, and Defendant 4, the number of employees working on the seven raw materials, including the Defendant’s Intervenor 4, did not detect the withdrawal of scrap metal during their respective working hours at least two times and three times. In other words, the Defendant 4 did not detect the removal of scrap metal at least two times between around 08:10 and around 11:00 on the same day, and did not immediately discover the removal of scrap metal to the Defendant’s last 10:0 on June 19, 2013 and on June 25, 2013, but did not immediately discover the removal of the scrap to the Defendant’s last 3:0 on the 20th day.

② As a raw material 7 door does not have a blocking machine to assist vehicle inspection, a vehicle can pass through a short time. Since one security worker works continuously for eight consecutive hours, it is difficult for the security worker to inspect or search all vehicles that pass through the spot alone. It is difficult for the security worker to actually inspect or search all vehicles and persons. There is no material to deem that there is a duty to inspect or search all vehicles and persons therein. A vehicle that passes through 7 raw materials within the front door of the 7th raw material door can be seen as a close range of vehicles passing through 7 raw materials, but the view is limited and its passage is difficult due to the occurrence of noise from about 56dB near nearby raw materials. Moreover, it is difficult for the security worker to find out whether the dump truck of this case is loaded to the front door of the 7th raw materials. It seems difficult to find it difficult to find the dump truck of this case immediately into the front door of the 7th raw materials.

③ The 7th sentence of raw material is a string door between the scco’s employees and the persons related to the scco’s employees and vehicles from time to time, such as the entry into and exit from a harbor restaurant, the repair of ships, and the transportation of steel raw materials. Even if the 7th sentence of raw material is located within the scambling area through the 7th sentence, it is a place where only several harbor-related companies are allowed to enter the scambling site at ordinary intervals (e.g., locking in the ordinary scambling and locking, and receiving the key from the scambling site. In the original scambling area, there was no way to leave the scambling site via this door to the outside via the scambing site, but it was possible to leave the adjacent wharf area around December 2012, making it possible for the scambling vessel to take out the 7th sentence of the instant material and its key to the 7th sentence.

④ At the time of the instant dump truck at the time of the instant shipment accident, the specific circumstances consisting of seven dump trucks without undergoing inspection and leaving seven sump trucks as raw materials do not appear almost on the record except the last accident at the time of the instant release. According to the testimony of Nonparty 4 by Nonparty 4, a dump truck driver of the instant case, following the testimony of the first instance court, no inspection was conducted at the time of the lapse of seven dump truck, and only several times were conducted by the employees in the front place, and it does not mean that employees passed the instant dump truck even after they become aware of the instant dump truck. There is no evidence that the seven dump truck driver of the instant case was in collusion with Nonparty 4 or

⑤ On the record of inspection and search prepared by the Defendant 3 and the Defendant 4, etc., who are the dump trucks, the dump trucks in question, indicated that they inspected other vehicles at the time before and after the passage. However, since the inspection time for other vehicles mentioned above differs from 10 minutes to 30 minutes short on the basis of the time presumed to pass through the dump trucks in this case, it does not seem to be naturally found even when the dump trucks in this case pass through the dump trucks. Rather, in other respects, it may be evaluated as a circumstance that the Defendant 3 and the Defendant 4 were not negligent in inspection and search of vehicles in the gump truck in question.

6) The Defendant 1, as an employee of the third scam, was unable to detect the first dump truck on the day of the last 7th dump truck on which the last dump truck was carried out on behalf of Nonparty 5, but at the time of the second dump truck’s release, the first dump truck was discovered immediately after the 7th dump truck passed through the 7th dump truck. The Defendant 1, while Nonparty 6 visited Nonparty 6, who visited the 7th dump truck on the dump truck on the dump truck on the dump truck on the 4th dump truck, called Nonparty 7 to check the instant dump truck on the dump truck on the dump truck on the 3th dump truck, was sent to Nonparty 7 without permission, and it was later delayed to check the dump truck on the 6th dump truck on the 3th dump.

7) At the time of the last accident, the Defendant 2 was allowed to take out the instant dump truck as a security worker in the third place of the port at the time of the arrival of the instant dump truck. In fact, the Defendant was allowed to take measures, such as checking and searching the instant dump truck, which was going into a wharf near the third place of the port and harbor, and was found to have been loaded with the scrap metal, and questioning Nonparty 4 of the circumstances of removal to the driver. Furthermore, the Defendant 1, who heard Nonparty 4’s answer, who was called the “dump truck from the dump construction site within the wharf area,” visited the Defendant 1 without contact with the Defendant 1, who was in the direction of processing, and sent the scrap metal back from the wharf area managed by the Port Administration, without taking measures such as additional inspection. In short, the scrap truck loaded on the instant dump truck, which was in violation of the authority of disposal, was granted to the Defendant 2, who was carrying out the instant dump truck, but did not know the construction contract.

(C) We examine these circumstances in light of the legal principles as seen earlier.

① First of all, it is doubtful whether the Defendant 1, the Defendant 3, and the Defendant 4, who are raw material seven workers, were aware of the passage of the instant dump trucks, without any obvious circumstance, even though the number of times the instant dump trucks could not be discovered in the raw material 7 text was 2 and 3 times per person, and the said dump trucks could be deemed to have been admitted. In light of the structure and site situation of the said 7 text, etc., the possibility of not finding the instant dump trucks that the seven dump trucks passed by the material dump trucks in the short time is objectively sufficient, and there is room to view that the removal of the instant dump trucks could have been carried out several times through the materials 7 text, and it is difficult to thoroughly inspect and search the vehicles operated only by a single sum

② At the time of the last accident, the Intervenor 1 discovered the transit of the instant dump truck, immediately contacted other security workers in order to check the shipment process, etc., and served as an active measure to facilitate the removal of scrap metal without permission. It is difficult to affirm the lower court’s conclusion that the Defendant 1 was willing to allow the passage of the instant dump truck at the 1ma and the Defendant 1’s Intervenor.

③ Under the situation where dump trucks in this case were rapidly inspected, the Defendant 2, who is the Defendant 2, who was the employee of the port third place, appears to have failed to confirm the progress of the removal of the dump trucks after informing the Defendant 1 of the inspection situation and indicating the direction of processing, and by misapprehending that the Defendant 2 was entitled to take out the scrap metal. It would be more reasonable in light of the empirical rule to conclude that the Defendant 2 took measures less than one time, and that there was an intention to impliedly take out the scrap metal using the instant dump trucks. The Defendant 1 also responded to the Defendant 2’s contact with the Defendant 2 at the time, stating that “if there is no anything wrong, it would be sent.”

④ Since raw material 7 workers worked on different days, the specific work status of each of them is different, and when individual workers work on different days, it cannot be said that there is little possibility that the instant dump truck could not be found two and three times. Different from the work contents and work status of the Intervenor 2, who is an individual worker in the 4th harbor. Nevertheless, without further examining whether the lower court’s specific work status of individual workers was left, it is concluded that all of the relevant workers are less than the probability of not finding the instant dump truck, and it is difficult to view that it is logical argument that all of them are the grounds for recognizing the intention of all of them as one time, and it is also inconsistent with the empirical rule.

⑤ Ultimately, the circumstances of the lower court, namely, that the vehicle could easily see the vehicle via the 7th raw material door, or that the relevant employees, including the intervenors, were unable to detect the instant dump truck once more than 11 times in total, cannot be readily concluded that the Intervenor had doluent intent to the extent that he/she knew the passage of the instant dump truck without any reasonable doubt, in light of the ordinary person’s perspective.

(2) Furthermore, the lower court’s determination that each of the instant disciplinary dismissal measures against the Intervenor is a dismissal with justifiable grounds within the scope of the Plaintiff Company’s discretion to punish the Intervenor is difficult to accept for the following reasons.

(A) The dismissal disposition is justified in cases where there are grounds for an employee’s responsibility to the extent that the employee’s employment relationship cannot be continued by 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 conditions of the workplace, the status and the contents of the employee’s duty, the motive and circumstances of the act of misconduct, the influence of the employee’s deceptive scheme on the company’s business order, such as the risk of disturbing the company’s deceptive scheme, and previous attitude of work (see Supreme Court Decision 2006Da48069, Nov. 23, 2006).

(B) Review of the reasoning of the lower judgment and the record reveals the following circumstances.

① According to the rules of employment and reward and punishment guidelines of the Plaintiff Company, “retirement” does not allow reemployment by taking disciplinary action as the most severe disciplinary action, and where there are grounds for misconduct, such as neglect of duties, in light of the standards for disciplinary action, disciplinary action is a disciplinary action that can be taken “in cases where the intention of dismissal is extremely serious or intentional.”

② However, as seen earlier, it is difficult to view that the Intervenor had dolusent intent to take out the instant dump truck by recognizing the passage of the instant dump truck, and thus, it cannot be said that there was a false accusation in light of the criteria for disciplinary action. Moreover, the number of times the Intervenor 1, the Intervenor 3, and the Intervenor 4, who was a material seven workers, were not exposed to the removal of the scrap metal, should be limited to 2 and 3 times, and it is difficult to view that the number of times the Intervenor 1, the Intervenor 3, and the Intervenor 4, who was not exposed to the removal of the scrap, is extremely serious.

③ As seen earlier, it was difficult for raw material workers to thoroughly inspect and search vehicles since the 7th sentence of the said raw material was not installed with a vehicle breaker and operated as a sole guard. Posco and the Plaintiff Company installed a stoper and a locker who can assist vehicle inspection in the 7th sentence after the instant shipment accident. Moreover, as the lower court determined, even if the Plaintiff Company instructed workers to carry out the goods related to the instant construction work through the scco 2 door in accordance with the procedure for the shipment of the goods into and out of the port, it appears that it was an ordinary duty instruction, and there was no evidence to deem that the Plaintiff Company specifically informed workers of the 7th sentence of raw material to prepare for the attempt to carry out the goods without permission via the scco’s raw material.

④ At the time when the Intervenor 1 discovered the instant dump truck, other security workers were in need of measures to set up and check the instant dump truck, and immediately found that there was no problem that Nonparty 2 inspected the instant dump truck. Moreover, Nonparty 6’s patrol staff followed Nonparty 2 to the Intervenor 2, and discovered that the instant dump truck was carried out without permission, and then reported as necessary. In light of such circumstances, it is difficult to view that the Defendant 1 did not make a immediate report to the upper part at the time.

⑤ At the time of the instant shipment, scrap metal taken out to the outside at the time of the instant shipment was the scrap metal from the wharf construction ordered by the Port Authority, and was granted the authority to dispose of the said scrap metal without permission by violating the contractual obligations under the construction contract with the Daelim Industrial Co., Ltd., a contractor, but was discovered. This is different from the type of the shipment without permission taken out to the outside, and there is no evidence to deem that direct damage was inflicted on Spanco, a contractor, due to the removal of scrap metal. Furthermore, even though the Intervenor’s perception of the instant shipment accident, it cannot be deemed that all relevant employees, including the Intervenor, intentionally aided and abetted the instant shipment, and thus, it was concluded that the Intervenor intentionally assisted the instant shipment, and that all of them were not responsible for the Intervenor’s external accident. Such measures cannot be deemed reasonable wife, and thus, are not attributable to the Intervenor.

④ The Plaintiff Company was established in accordance with the Switzerland’s policies around 2005 and continued to take exclusive charge of protecting and guarding Poscosco from that time. Although the Plaintiff Company received a warning that the termination of the outsourcing agreement would also be considered in the event of a recurrence of similar cases after the instant shipment accident, it is difficult to view that the Plaintiff Company promptly suffered damage to the extent that its existence would be threatened.

7) The Intervenor had been assigned in sequence to Posco and the Plaintiff Company for about 21 years and 30 years until the time of the instant disciplinary dismissal, and provided the security service for Posco and the Plaintiff Company. The Intervenor does not seem to have committed a serious neglect of duties or a serious misconduct in view of the past past misconduct records, etc.

(C) We examine these circumstances in light of the legal principles as seen earlier. In light of the field situation of the 7th raw materials as seen earlier, the number of times the Intervenor did not discover the accident out of the country, and the situation at the time of the last accident, etc., the Intervenor’s failure to detect the accident out of the country, or neglecting inspection and search of the instant dump trucks by intention or by gross negligence, it is difficult to view that each disposition taken against the Intervenor cannot be deemed to conform to the criteria for disciplinary action taken on the part of the Plaintiff Company’s Disciplinary Guidelines. In addition to these circumstances, it is difficult to view that the labor relationship between the Plaintiff Company and the Intervenor reached the extent that the Intervenor’s employment relationship can no longer be continued due to the reason attributable to the Plaintiff Company’s company’s business order, the Intervenor’s negligence, impact on the Intervenor’s past work attitude, etc. It is sufficient to view that each disposition of the instant disciplinary dismissal excessively deviates from the scope of discretionary power.

C. Nevertheless, based on its stated reasoning, the lower court determined that each of the instant disciplinary dismissal dispositions was dismissal with justifiable grounds. In so doing, the lower court erred by exceeding the bounds of the principle of logic and experience and the principle of free evaluation of evidence, exceeding the bounds of the principle of free evaluation of evidence, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. 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 Jo Hee-de (Presiding Justice)