(영문) 서울고등법원 2015.10.16.선고 2015누38483 판결

The decision of the first instance court shall be revoked. On May 19, 2014, the Central Labor Relations Commission revoked the decision of the second instance on the application case for remedying unfair dismissal between the Plaintiff, the Intervenor, and the designated parties (hereinafter referred to as “participatings”) on May 19, 2014.

Reasons

1. Quotation of judgment of the first instance;

The grounds for the Plaintiff’s assertion in the trial while filing an appeal do not differ significantly from the already asserted contents in the trial of the first instance. Considering the allegations and grounds for partial supplementation in the trial of the first instance, the first instance court’s determination rejecting the Plaintiff’s assertion is justifiable even if the evidence submitted in the trial of the first instance shows each description of evidence Nos. 2 through 40 (including each number) newly submitted by the Plaintiff in the trial of the first instance.

Therefore, the reasoning of the judgment of the court concerning this case is as follows: (a) the 11th 1st 3th 11th 11th 2013 "the net income for the year 2013" is "the 4.2 billion won for the net income for the year 2013"; and (b) the 6th 12 and 13th 6th 13 "government affairs" is "government affairs"; and (c) the judgment on the state emphasized by the plaintiff at the trial is identical to the 1 and 2th 1th 2th 2th 201, and thus, it is cited as it is in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Determination as to addition of the claims asserted by the Plaintiff, emphasizing at the trial

(a) whether it has made every effort to avoid dismissal;

1) Summary of the Plaintiff’s assertion

The Plaintiff was making full efforts to avoid the management crisis by closing a certain place of business, such as the Southern-dong Branch, paying bonus differentially, and discontinuing the dividend payment system for its members. In addition, the Plaintiff made full efforts to avoid dismissal as stipulated in Article 24 of the Labor Standards Act by conducting a desired retirement twice prior to the instant layoff, and by re-involving the person subject to layoff as a contractual position or exchanging personnel.

2) Determination

(A) The fact that the employer shall make every effort to avoid dismissal among the requirements for layoff refers to the rationalization of management invasion or work methods, prohibition of new employment. The use of temporary retirement and voluntary retirement, and the method and degree of taking all possible measures to minimize the scope of dismissal. The method and degree vary depending on the degree of management crisis of the relevant employer, managerial reasons for which the layoff should be conducted, the contents and scale of the business, and the number of personnel by class, not on a fixed and fixed basis, and if the employer has reached an agreement on the implementation of layoff in good faith with the labor union or the labor representative regarding the methods for avoiding dismissal, such circumstances should also be taken into account in determining the efforts to avoid dismissal (see, e.g., Supreme Court Decision 2003Du11339, Jan. 15, 2004);

(B) Evidence No. 2, Evidence No. 3-2, Evidence No. 5, Evidence No. 6-1 through 4, Evidence No. 10-1, Evidence No. 12-2, Evidence No. 16-1 through 3, Evidence No. 23-1, Evidence No. 33-1, Evidence No. 38-1 through 3, Evidence No. 40-1, Evidence No. 5-2, Evidence No. 5-2, and Evidence No. 13-2, Evidence No. 1, E-2, and evidence No. 13-2, and evidence No. 13-2, and evidence No. 13 are not established in the judgment of the court below that the plaintiff concluded a plan to dismiss employees at the time of this case’s 3-2, E-2, and evidence No. 13. It is difficult to view that the plaintiff concluded a plan to improve the labor-management performance of each of the above 1-2,000 bonus to be paid.

① After the point of view of the Board of Audit and Inspection, there is no " human resources reduction" item as an essential implementation item in the management normalization implementation agreement entered into with NFFC on October 201 (this differs from that of "human resources reduction" in the management normalization implementation agreement entered into with NFFC prior to the Board of Audit and Inspection). There is no essential requirement in the management normalization implementation plan in 201, and there is no content regarding the reduction of human resources in the event of an exercise. Even if the plaintiff is based on the timely corrective action implementation plan entered into on July 22, 2013 upon the decision of NFFFFF's insolvency association and the recommendation for management improvement, personnel expenses are planned only to operate the incentive bonus thoroughly according to the business performance results by each department, and according to the actual inspection report entered into on April 12, 2013 by NFF, the plaintiff seems to have been highly likely to have made a request from NFFFF to reduce the total amount of personnel expenses for each person in the business management normalization agreement, not the average average value for each person.

(2) Although the budget reduction through the reduction of the number of workers can be a method for business efficiency, business efficiency may be achieved not only through passive methods such as the reduction of the number of workers, but also through the rationalization of business policies and methods of employment. The effect of budget reduction through the reduction of the number of workers can be partially achieved through the adjustment of wages. In particular, if there is doubt as to whether it is essential to reduce the number of workers, it should take into account the effective reduction of the number of personnel expenses. However, the Plaintiff only carried out voluntary retirement at the request of the representative of workers while doing so. The Plaintiff did not take measures to reduce the number of wages requested by the representative of workers, including the reduction of the number of wages, annual unpaid leave, circular leave, reduction of working hours, temporary leave, etc. However, it is difficult to conclude that the Plaintiff agreed on the adjustment through the labor representative and the representative of workers at the time of the labor-management consultation, but it is difficult to consider that the Plaintiff’s efforts to reduce the number of wages as above is different from the annual request to reduce the number of wages.

③ While the main reason for the instant layoff is to reduce personnel expenses through personnel reduction, the Plaintiff promoted on January 30, 2013 to seven Grade IV employees (the Plaintiff promoted 1, 2011 and 9, 2012). Furthermore, the Plaintiff newly employed 28 employees before and after the instant layoff, nine new employees were newly employed after the instant layoff. (C) The Plaintiff employs four new employees even in 2014, and the Plaintiff increased the number of employees as executive officers after the instant layoff (the Plaintiff asserted that there is an inevitable ground to adjust the number of regular employees according to the Plaintiff’s organization rules. However, according to Chapter II of the Plaintiff’s organization rules, the Plaintiff appears to have been unable to assert that the number of new employees increases before and after the instant layoff and new employees, the Plaintiff’s recruitment of new employees and new employees increases in the number of employees after the instant layoff, as well as the Plaintiff’s recruitment of new employees and new employees for the same reasons.

④ The Plaintiff asserts that there is a high ratio of higher class, and thus, it is necessary to reduce the number of employees for higher class, but the Plaintiff’s salary is composed of levels 1 to 4. As of December 31, 2012, which is the date of the instant layoff, the Plaintiff’s salary is 25, and the upper class is 18.4% (25 / 136 x 100 x 100, and 20 x hereinafter the same shall apply) among the Plaintiff’s employees as of December 31, 2012, and it is difficult to view that the higher ratio of class 2 or higher is difficult, and as of December 31, 2013, which is the date of the instant layoff, it is questionable that the lower ratio of class 2 or higher was lower than that of the instant layoff as of December 5, 18 (23/124 x 100 x 100). Accordingly, it is doubtful that the number of class 1 lower is the Plaintiff’s wage.

⑤ Even based on the comparison table of personnel expenses submitted by the Plaintiff, the difference between the enforcement amount of personnel expenses for 2013 years in which the instant layoff occurred (5,225,252,235 won) and the estimated personnel expenses for 2014 (5,029,860,000 won), is less than KRW 200 million, and the estimated personnel expenses enforcement amount for 2015 rather than KRW 2014,000,000,000,000,000 won, which were planned by the Plaintiff. In light of the current state of capital erosion for 2012, it is difficult to view that the Plaintiff’s reduction of 20,000 won out of the Plaintiff’s budget would have a significant effect on the reduction of 10,000 won for the total amount of retirement allowances for 20,000,0000 won. Meanwhile, the Plaintiff’s reduction of 20,000 won for retirement allowances for 20,000.

6) The Plaintiff’s efforts to avoid dismissal, i.e., voluntary retirement, personnel exchange, contract employment, and efforts to avoid dismissal, i.e., closing of a branch, responsible management system, performance-based bonus reduction, bonus reduction, and the abolition of dividends to members, etc., are basically intended to achieve the objectives set forth in accordance with the management normalization implementation agreement entered into with NFFC, and it is difficult to view the Plaintiff as self-help efforts beyond the ordinary business activities scope to be an operator for getting out of managerial crisis, and therefore, it is difficult to deem that the Plaintiff made a special effort for the instant layoff. (On the other hand, the Plaintiff asserted that the bonus payment is the efforts to avoid differential payment, but as long as the bonus of the officers still exceeds 600%, it is difficult to view the Plaintiff’s bonus as the efforts to avoid reasonable dismissal. In addition, since the Plaintiff’s efforts to avoid actual dismissal, such as reduction of fixed assets and inventory assets, poor loan management, non-performing loan management, and fishery products transactions in the past.

7) Even if the Plaintiff’s desired retirement can be assessed as part of efforts to avoid dismissal, it seems that the aforementioned desired retirement was made in order to grant justification for dismissal in a way that minimizes legal disputes compared to layoffs. Therefore, it is reasonable to deem that the Plaintiff made efforts to avoid dismissal by taking into account the Plaintiff’s efforts to avoid dismissal rather than voluntary retirement, rather than voluntary retirement, that the Plaintiff’s voluntary retirement was carried out at the request of the labor representative, that the voluntary retirement was a worker who was designated as a person subject to layoffs, that the details of specific voluntary retirement compensation, etc. were determined at the fourth session with the labor representative, and that it is less than compensation money. In light of the above, it is reasonable to deem that the aforementioned voluntary retirement was made only to be made by using the voluntary retirement system as a means of exchange or supplementary means of layoffs in the opportunity to dismiss the instant case. Meanwhile, it is reasonable to deem that the Plaintiff was making efforts to avoid dismissal by taking into account the Plaintiff’s voluntary retirement and voluntary efforts to avoid dismissal (the Plaintiff’s voluntary retirement and voluntary retirement from employment).

9) As seen later, considering the fact that it is not recognized that it is reasonable to select a person subject to layoff, and that it is difficult to recognize the Plaintiff’s faithful consultative efforts, the Plaintiff is not to reduce the number of persons selected according to the initial standards for layoff, but to take all possible measures to minimize the scope of layoff as an employer, and it seems that the Plaintiff would go to the layoff in this case.

(b) Whether the selection of dismissed persons is fair and reasonable;

1) Summary of the Plaintiff’s assertion

The plaintiff selected a person to be dismissed with the authority delegated by the representative of workers after sufficient consultation with the representative of workers, and prepared a written agreement on the criteria for selection of the representative of workers and the person to be dismissed. Since the new criteria for dismissal of the person to be dismissed are recognized objectivity and rationality in terms of the contents and allocation of the evaluation items, the new criteria for dismissal are recognized, the case of which the person to be dismissed is selected in accordance with these criteria have rationality and fairness.

2) Determination

(A) The reasonable and fair criteria for layoffs are not definite and fixed, but vary depending on the type of business crisis faced by the employer, managerial reasons for which the employer should conduct layoffs, the contents of the business sector where the layoffs are conducted, the composition of workers, and the social and economic situation at the time of the implementation of layoffs. In a case where the employer has reached an agreement on the criteria for layoffs in good faith with the labor union or the labor representative after faithfully consulting with the labor union or the labor representative regarding the criteria for layoffs, these circumstances should also be taken into account in determining whether the criteria for layoffs are reasonable and fair (see Supreme Court Decision 2001Da29452, Jul. 9, 2002). In addition, in order to prevent the characteristics of the dismissal under Article 24 of the Labor Standards Act, which dismisses workers due to business reasons, not to be responsible for employees, from disadvantage to workers who are not preferred by the employer, or from being employed as an opportunity to change the labor organization for workers who are preferred by the employer, the criteria for the selection of workers ought to be adequately taken into account such factors as the employer’ obligation of work period.

(B) Whether there is rationality and fairness in the selection criteria for layoffs

In full view of the evidence and evidence No. 25, No. 25, No. 14, the plaintiff selected 13 persons subject to restructuring in consultation with the representative of workers in determining the standards of the occupation of this case, and obtained consent from the representative of workers by preparing the criteria for selection of those subject to layoffs. The above criteria for selection of those subject to layoffs are acknowledged as follows: the company's pay burden, work evaluation, work performance rating, current number of years of continuous service, work nature, etc. are determined as the criteria for allocation of the company's salary according to the classification of each item in order to protect profits in consideration of the company's support duty, other family income, continuous work years, age, and achievement of the defendant's managerial necessity and objective of dismissal.

However, in light of the above legal principles, the following circumstances can be seen as fair and reasonable criteria for the Plaintiff’s selection of a person subject to layoff, based on the evidence and evidence set forth earlier, Gap evidence Nos. 26, Eul evidence Nos. 27-1 through 7, Eul evidence Nos. 17, and Eul evidence Nos. 25, and Eul evidence Nos. 25. 25. The Plaintiff’s final agreement on the selection of a person subject to layoff (Evidence No. 25) is entirely different from the above criteria for the selection of a person subject to layoff, and there is no ground to deem this part of the Plaintiff’s assertion.

(2) While the Plaintiff agreed with the labor representative and the employees to select those who were subject to layoffs, the Plaintiff excluded from the employees subject to layoffs without reasonable grounds, the employees who had no record of work balance on the last two or one occasion due to employment, promotion, wood, suspension of work, etc. in the selection of those subject to layoffs, and employees who had consulted with the labor union in consultation between the labor union and the employees related to restructuring and the labor representatives.

③ The Plaintiff asserts that the number of employees was more fair than 10 points in selecting those subject to dismissal. The Plaintiff formally provides 10 points in addition to 10 points in the number of family members, 5 points in double punishment, 10 points in the number of years in continuous service, 15 points in the rating 25 points in the work, 10 points in the work grade, 10 points in the work grade, and 10 points in the work grade. However, the Plaintiff selected those subject to dismissal based on the converted points in consideration of 10 points in the number of years in continuous service, 15 points in the work grade, 25 points in the work grade, 10 points in the number of years in the work grade, 4 points in the work grade, 10 points in the “business grade” and 10 points in the number of years in the work grade and 2 points in the employment grade or 10 points in the number of years in the employment grade and 2 points in the employment grade or 10 points in the employment grade.

4) Examining the sensitive items that reflects the history of disciplinary action, reimbursement, suspension of duty, wage seizure, or civil petition filed by other agencies in the selection of a person subject to layoff, there is no criminal offense such as embezzlement or breach of trust, which has a greater adverse effect on the external credibility of the union or the management status of the union (the plaintiff asserts that the business of the fisheries cooperative is a business that requires high level of morality unlike the general company. The plaintiff's selection criteria for the person subject to layoff prepared by the plaintiff stipulate the reasons for reduction of the amount of "Embezzlement or breach of trust," and the case of "benefit seizure" or "civil petition of other agencies, which is only external matters, difficult to see that it causes any particular harm to the company," the reduction points are five points or five points, and the work rating is divided into the period of suspension and reprimand without any special reasons, but it cannot be ruled out that there is no doubt that the plaintiff's selection of the person subject to layoff has been made in order to make the selection of the person subject to layoff, such as the reduction of the period of use.

⑤ Examining the points actually calculated in accordance with the criteria for the selection of the Plaintiff’s person subject to layoff, it is difficult to 60 points in the case of lower-ranking persons, and as the remaining employees are also suffering from 11 points to 65 points, 11 points or 65 points, etc., and the decision on whether to dismiss the Intervenor was made, it seems that the distorted effect on the criteria for selection was very significant. For example, for instance, for a participant, E, one of the intervenors, recorded the highest rating of work performance in 2012, 91 points in 2013, 2013, and has been five or more family members without income, even though the incumbent continuous service year is more than 15 years, and 8 points in the face of disciplinary action such as seizure, civil petition, etc., were reduced, and was selected as a person subject to layoff.

(6) On the other hand, on September 25, 2013, the Plaintiff consulted on the selection of the representative of workers and the person subject to the prior layoff from October 4, 2013, and agreed on the selection criteria for the person subject to the prior layoff from October 21, 2013. According to this, the Plaintiff already selected the person subject to the prior layoff before reaching an agreement on the selection criteria for the person subject to the prior layoff. Accordingly, there is doubt about the objectivity and fairness of the selection. Accordingly, the Plaintiff asserted to the effect that it is not an issue because the Plaintiff was delegated by the representative of workers. However, even according to the Plaintiff’s argument, the Plaintiff did not know what criteria were applied in selecting the person subject to the prior layoff. As seen earlier, it is difficult to determine the possibility that the Plaintiff would have first selected the person subject to the prior layoff by taking into account the difference between the selection criteria for the person subject to the prior layoff and the actual application of the selection criteria.

(No. (No.) Even if preparing the selection criteria for the person subject to layoff and actually selecting that person, as seen earlier, the Plaintiff agreed on the selection criteria for the person subject to layoff, and then the Plaintiff resolved on the instant layoff on the following day. The Plaintiff’s actual results are analyzed closely, and it seems that the selection of the person subject to layoff will come to the instant layoff according to the result of the selection mechanically without examining whether it is fair and reasonable or efforts to minimize the scope of layoff.

1) Summary of the Plaintiff’s assertion

With the consent of the vessel's employees, the representative of workers was legally selected, and the plaintiff faithfully consulted on four times from September 9, 2013 to October 8, 2013 about the means to avoid dismissal and the criteria for selection of workers subject to dismissal.

2) Determination

(A) Article 31(3) of the Labor Standards Act provides that an employer shall inform in advance and faithfully consult about the method of avoiding dismissal and the criteria for dismissal to a labor union organized by a majority of workers at the relevant business or workplace; and that if there is no labor union organized by a majority of workers, a person representing a majority of workers (representative of workers) shall be subject to the procedural requirements for layoff, which provides for the procedural requirements for layoff. In addition, even if there is an inevitable layoff, it is desirable for both parties to be conducted through consultation (see, e.g., Supreme Court Decision 2010Du15964, May 24, 2012).

(B) In light of the above legal principles, it is difficult to see that discussions between the plaintiff and the labor representative on the necessity of layoffs have been progress without presenting sufficient information on the management status of the company, i.e., the following circumstances: ① the plaintiff appears to have failed to make efforts to avoid layoffs as seen earlier; ② the labor representative presented his opinion on wage reduction, annual unpaid leave, etc.; ② the plaintiff refused the above request on the ground that labor cost reduction is difficult to reduce, etc.; ③ it is difficult to see that consultation between the plaintiff and the labor representative on the necessity of layoffs was unilaterally emphasized for four times of labor-management consultation, and it is difficult to see that consultation between the plaintiff and the labor representative on the necessity of layoffs has reached an in-depth discussion with the labor representative, and it is difficult to find that consultation with the labor representative of the plaintiff was conducted without presenting sufficient information on the management status of the company. ④ It appears that consultation with the labor representative of the plaintiff on the premise that it is difficult to find that consultation with the labor representative of the plaintiff was conducted in detail after consultation with the labor representative of the plaintiff.

D. Sub-determination

Therefore, it is difficult to view that the layoff of this case satisfies the requirements, and it is unlawful to review the same purport.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.