A. Whether an employer may set new grounds for disciplinary action under the rules of employment and take disciplinary action against him/her, unless it is contrary to a collective agreement (affirmative)

(b) The case holding that dismissal pursuant to the rules of employment is null and void on the grounds that the collective agreement provides that dismissal shall be based on the provisions of the collective agreement and that it shall not be dismissed pursuant to the rules

A. Unless it is contrary to a collective agreement, an employer may set a new disciplinary cause under the rules of employment and take disciplinary action against him/her based on such disciplinary cause.

(b) The case holding that dismissal under the rules of employment shall be null and void on the grounds that the collective agreement provides that dismissal shall only be governed by the provisions of the collective agreement, and that dismissal shall not be made by the rules

(a) Articles 97(1) and 94 of the Labor Standards Act; Article 36(1) of the Trade Union Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Plaintiff-Appellant and 3 others, Counsel for the plaintiff-appellant

Dae Forestry Engineering Co., Ltd., Counsel for the plaintiff-appellant-appellee and five others

Seoul High Court Decision 91Na43406 delivered on September 30, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

With respect to First Points

In full view of the adopted evidence, the court below found that the plaintiff's act of disturbance, such as disturbance against the non-party who is a worker's worker, constitutes a disciplinary cause under Article 64 subparagraph 2 of the Rules of Employment, but does not constitute a disciplinary cause under the rules of employment. Thus, since the part which caused disturbance of order under the rules of employment under the rules of employment is null and void because it constitutes a disciplinary cause under the provisions of the collective agreement, it shall not be subject to disciplinary action, and pursuant to Article 40 of the collective agreement, it shall be subject to the collective agreement as to dismissal and shall not be dismissed by the rules of employment. Thus, the court below determined that the disciplinary action of this case is null and void.

The rules of employment that violate the criteria for the treatment of workers and working conditions prescribed in the collective agreement shall be null and void (Article 36(1) of the Trade Union Act). The rules of employment shall not be contrary to the collective agreement applicable to the workplace concerned (Article 97(1) of the Labor Standards Act), but an employer may determine new grounds for disciplinary action under the rules of employment and may take disciplinary action based on such grounds for disciplinary action (see Supreme Court Decision 92Nu13035 delivered on January 15, 1993).

However, Article 64 subparagraph 2 of the Rules of Employment of Defendant Company, which is the basis of the instant disciplinary dismissal disposition, provides for a new disciplinary cause which is not related to the grounds for disciplinary action under Article 36 of the collective agreement, and it is difficult to say that it goes against the provisions of Article 36 of the collective agreement. Therefore, the part concerning the act of disturbing order under Article 64 subparagraph 2 of the Rules of Employment is erroneous in the part that states that the act of disturbing order under Article 64 subparagraph 2 of the collective agreement is null and void because Article 36 of the collective agreement is made invalid. However, Article 40 of the collective agreement provides that it shall be dismissed by the collective

The court below's decision that the disciplinary dismissal in this case is null and void by applying Article 64 subparagraph 2 of the Rules of Employment shall eventually turn back to the absence of its reason.

With respect to the second ground:

In light of the records, the court below recognized the process of the act of disturbance and the attitude of the plaintiff after the end of the act of disturbance and the act of disturbance as stated in its judgment, and judged that the defendant company's disposition of disciplinary dismissal, which is the most severe disciplinary action against the plaintiff's act of disturbance, is too excessive, and it is justified to view that the defendant company's disposition of disciplinary dismissal, which is the most severe disciplinary action against the plaintiff's act of disturbance, is deviating from the scope of the disciplinary authority. There is no error of law by incomplete deliberation as pointed out in the theory of the lawsuit, as well as by mistake of facts due to violation

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)