If a driver of a transportation company has made a balance after deducting a taxi commission out of the transportation income as an individual's income, whether such income constitutes wages for the transportation company.

In addition to paying a certain amount of money according to the actual working days each month to the drivers under his/her jurisdiction, if a transportation company has left the balance after deducting a certain amount of taxi commission paid to the company out of daily transportation earnings in consideration of the characteristics of the work form and the convenience of calculation, etc. with the individual's income and has been left to a free disposition, the portion which is the individual's income and the wage, which is the price for labor,

Article 18 of the Labor Standards Act

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law No. 1355, Jun. 2, 1988) (Law No. 1988, Mar. 22, 1988) (Gong1988,673)

Plaintiff

Haban Transport Limited Liability Company

Busan High Court Decision 90Na8664 delivered on August 29, 1991

The part of the judgment below against the plaintiff regarding the claim for payment of money shall be reversed, and this part of the case shall be remanded to Busan High Court.

We examine the grounds of appeal.

1. As to the claim for wages

According to the reasoning of the judgment of the court below, the court below held that the defendant company's disciplinary action against the plaintiff on January 25, 1989 of this case against the plaintiff was null and void on the grounds as stated in its reasoning, and on the ground that the defendant company's driver employed as the defendant company and sought a payment of the amount of 500,000 won per month by the time of reinstatement, the court below rejected this part of the plaintiff's claim on the ground that among the plaintiff's claim, the sum of the basic monthly wage from the defendant company and the bonus equivalent to 100% of the basic monthly wage per year and the bonus equivalent to 100% of the basic wage per year, the amount of 215,254 won per month shall be ordered to pay wages, and on the premise that the remaining amount of the plaintiff's own revenue after deducting the taxi commission paid from the daily transportation revenue did not constitute a tort on the ground that the plaintiff company's claim for the above amount as its own revenue was seeking compensation for damages arising from the disciplinary action of this case and thus dismissed.

However, according to the records, the defendant company's remaining balance after deducting a certain amount of taxi commission paid to the defendant company out of daily transportation income, considering the unique characteristics of the work form and the convenience of calculation, in addition to the payment of a certain amount according to the number of days of actual work each month, has been entrusted with free disposition. The above part of the daily transportation income of the driver company's individual's individual's individual's individual's individual's individual's individual's individual's individual's income also constitutes wages which are paid as compensation for work (see Supreme Court Decision 87Da570 delivered on March 22, 198). Meanwhile, the plaintiff's individual's monthly income does not clearly state that the monthly income is about 500,000 won after deducting the taxi commission from the monthly transportation income received from the defendant company's company's individual's individual's individual's individual's individual employee's daily income, and it is reasonable to view it as a claim for damages.

Therefore, even though the court below should have determined the propriety of the claim after clarifying the part of the plaintiff's personal revenue, the rejection of this part of the claim solely for the above reasons has caused a misunderstanding of the nature of the personal revenue of the driver, or failure to exhaust all necessary deliberations due to erroneous interpretation of the plaintiff's assertion, which affected the conclusion of the judgment. The grounds for appeal assigning this error are with merit.

2. As to the claim of consolation money

According to the reasoning of the judgment below, the court below rejected the defendant's claim for the payment of consolation money on the ground that the plaintiff was suffering from mental suffering due to unfair dismissal of the plaintiff, on the ground that the dismissal of the disciplinary action in this case is null and void, but it cannot be said that it constitutes a tort unless there are any special

However, it is natural that the dismissal of an employer would not immediately constitute a tort if it is judged that the dismissal is null and void due to the reason that the dismissal is null and void. However, even though the employer did not have any reason to discipline an employee, it is objectively clear that the dismissal intentionally makes a certain reason for dismissal or uses the means of disciplinary action on the ground that the employer seeks to find the employee at the workplace without any reason to discipline the employee, or that it does not constitute a reason for dismissal, or if it is objectively clear that a fact which was the ground for dismissal does not constitute a reason for dismissal or cannot be considered a reason for dismissal, and if it is paid a little attention, it can be easily seen that the abuse of the right to discipline, such as disciplinary action, where it is obvious that the abuse of the right to discipline cannot be accepted under our sound social norms and social norms, it is invalid as it is not completely justified under Article 27(1) of the Labor Standards Act, but it cannot be seen that the dismissal is null and void under the law prior to the dismissal of the employee, even if it does not have any mental suffering from the other mental suffering.

However, as determined by the court below, the grounds for disciplinary action against the plaintiff, which the defendant company did not constitute the grounds for disciplinary action or could not be considered as the grounds for disciplinary action. Furthermore, in light of the fact that the defendant company agreed to attach all questions to the plaintiff during the strike period around September 1987 through labor-management consultation, and violated one year and three months, and later, new issues were raised during the strike period. However, the defendant company's own act of making unfair advance notice of dismissal and unfair dismissal against the plaintiff from November 1, 1986, which decided that the above advance notice of dismissal was null and void by the Labor Relations Commission's order to remedy or the above dismissal which judged unfair labor practice against the plaintiff, while failing to actively refuse to work or reinstate the plaintiff, and the plaintiff did not work normally without any justifiable reason, and therefore, the defendant company established the plaintiff company's sound labor union in spite of the absence of clear grounds for dismissal, and made it clear that it constitutes a ground for dismissal against the plaintiff in this case's society and society.

The court below's rejection of the plaintiff's claim for consolation money on the grounds stated in its reasoning is erroneous in the misapprehension of legal principles as to the establishment of tort in unfair dismissal, which affected the conclusion of the judgment. The ground for appeal assigning this error is with merit

3. Therefore, the part of the judgment below against the plaintiff regarding the claim for payment of money is reversed, and the case is remanded to Busan High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Young-young (Presiding Justice)