2014AD 2988 Nullification, etc. of dismissal

A

B Educational Foundation

August 14, 2014

October 2, 2014

1. On January 29, 2013, the Defendant’s removal against the Plaintiff on January 29, 2013 confirms that the removal is void.

2. The defendant shall be the plaintiff.

(a) The amount of KRW 135,00,000 and the amount of each claim in the column of the attached Table among them shall be 5% per annum from the corresponding date to June 12, 2014, and 20% per annum from the next day to the date of full payment;

B. Each payment shall be made at the rate of KRW 9,00,000 per month from May 1, 2014 to the time the plaintiff is reinstated.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Defendant is a corporation with the purpose of operating C University, etc., and employs 150 full-time workers. Since the Plaintiff was newly appointed to the Defendant corporation on July 24, 1996, the Plaintiff was serving as Grade III in general service at C University Library.

B. On January 18, 2013, the Defendant held an employee disciplinary committee to dismiss the Plaintiff on the ground that: (a) absence from office and absence from office without permission; (b) absence from office; (c) refusal to perform personnel orders; (d) unauthorized travel; (e) non-payment of vehicle for university business; and (v) refusal to receive postal items; and accordingly, the Defendant’s chief director dismissed the Plaintiff on January 29, 2013.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1, purport of whole pleadings

2. Determination as to the claim for confirmation of invalidity of removal from office

A. The parties' assertion

1) The plaintiff's assertion

A) Although the Plaintiff filed an application for challenge against seven members of the above disciplinary committee, and filed an application for challenge against six among them, the disciplinary committee members who received the application for challenge participated in the decision on challenge against the disciplinary committee members who received the application for challenge due to common causes with the Plaintiff. This constitutes a serious defect in the procedure for the decision on challenge, and thus, the disciplinary action against the Plaintiff is invalid.

B) The Plaintiff was absent from office without permission or did not leave the workplace without permission, and the grounds for the disciplinary action against the Plaintiff do not exist or are unreasonable.

C) Even if some of the grounds for disciplinary action are recognized, the Defendant’s removal, which is the most severe disciplinary action against the Plaintiff, is unreasonable as it deviates from and abused the right to discretion on disciplinary action.

2) The defendant's assertion

A) The purpose of the Plaintiff’s motion for challenge is to avoid disciplinary action solely by delaying or terminating disciplinary proceedings, which constitutes abuse of the challenge system. Therefore, the rejection of the Plaintiff’s motion for challenge without excluding the pertinent disciplinary committee members is justifiable as measures within the necessary scope for the proper operation of the disciplinary system.

B) On August 11, 2008, the Plaintiff was absent from work or left from work without permission on February 26, 2011, and on August 201, 2012, the Plaintiff did not perform any duty despite appointment as a library head. ③ From July 20, 2012 to August 26, 201, the Plaintiff made an overseas trip without permission of the president under Article 5 of the Regulations on Overseas Travel of Teaching Staff. ④ The Plaintiff failed to comply with the notification of the return of the vehicle for business by Defendant corporation on October 24, 201 and November 2, 2011. ⑤ The Plaintiff refused to receive the item in the name of Defendant Corporation’s president and returned the item.

C) The removal of the Plaintiff cannot be deemed as a disciplinary action that deviates from or abused discretion in light of the degree of the misconduct and the intent of the Plaintiff.

B. Determination

1) Of the Enforcement Decree of the Private School Act and the provisions of the Defendant Corporation, the relevant provisions are as follows.

Article 24-8 (Challenge, etc. of Members) (1) of the Enforcement Decree of the Private School Act may, when there are reasonable grounds to believe that a member of the teachers' disciplinary committee is likely to make an unfair decision, explain the fact in writing and make a request for challenge. (2) In the event that a request for challenge is made pursuant to paragraph (1), the person in receipt of the request for challenge shall not participate in the decision on challenge. In this case, the person in receipt of the request for challenge shall not participate in the decision. (3) When the members of the teachers' disciplinary committee fall short of 2/3 of the incumbent members due to exclusion pursuant to Article 63 of the Act or challenge pursuant to paragraph (1) of the same Article, the chairperson of the teachers' disciplinary committee shall request the appointing authority to appoint temporary members so that the number of members of the teachers' disciplinary committee may be more than 2/3 of the incumbent members. (1) The person in receipt of a request for challenge pursuant to paragraph (1) of the same Article shall prepare an order of disciplinary action and report thereon to the president in writing.

(4) The chief director shall, upon receiving the notification under paragraph (3), take the disciplinary action according to the contents of the resolution within seven days from the date of receipt of such notification.

2) The purpose of the motion for challenge is to maintain neutrality, objectivity and fairness in the process of disciplinary proceedings and to the maximum extent possible by excluding disciplinary committee members who are likely to compromise the fairness of disciplinary proceedings under Article 24-8 of the Enforcement Decree of the Private School Act. Since the right to request challenge is the only right to oppose the biased composition of the disciplinary committee, the interpretation of the latter part of Article 24-8(2) of the Enforcement Decree of the Private School Act shall be sufficiently taken into account. Generally, the motion for challenge is originally against each individual disciplinary committee, and even if there is an individual request for challenge, each disciplinary committee member may not participate in the resolution for challenge against himself/herself by the latter part of Article 24-8(2) of the Enforcement Decree of the Private School Act, and thus, it is recognized that there is no possibility that the remaining request for challenge by the president for discipline against him/her may take part in the resolution for challenge against the other person by 10th anniversary of the above disciplinary committee’s request for discipline against the latter part of the above Article 24-1 of the Enforcement Decree of the Private School Act.

According to the above facts of recognition, although the plaintiff filed an application for challenge against six of the disciplinary committee members due to common causes, the above six disciplinary committee members participated in the challenge resolution for other disciplinary committee members who received the application for challenge due to common causes with them. Therefore, the challenge resolution is null and void as it violates Article 13 (2) of the Regulations on Disciplinary Measures against Teachers and Employees, and the removal resolution against the plaintiff made by the disciplinary committee participating in the disciplinary committee is also null and void.

4) Meanwhile, in full view of the above various circumstances, including the Defendant’s provision on disciplinary action against teachers and staff, the Plaintiff’s motion for challenge and the circumstances leading up to the Plaintiff’s motion for challenge, the Plaintiff’s motion for challenge solely aims to avoid disciplinary action by delaying or not gathering disciplinary proceedings. Thus, it cannot be deemed as abuse of the evasion system.

5) Accordingly, the Defendant’s removal from office against the Plaintiff was made in accordance with a null and void resolution, and is deemed null and void due to procedural defects.

3. Determination on the claim for payment of wages

As seen earlier, the removal disposition of this case is null and void. Therefore, the Defendant shall pay the Plaintiff wages from February 1, 2013 to the time the Plaintiff is reinstated, which was subsequent to the removal disposition of this case, barring any special circumstances.

However, the facts that the Defendant paid KRW 9,00,000 to the Plaintiff monthly salary of 17th day of each month do not dispute between the parties or can be recognized by comprehensively taking into account the purport of the entire pleadings in the statement in subparagraph 2. As such, the Defendant has the obligation to the Plaintiff to pay the Plaintiff 1 the unpaid wages of KRW 135,000,000 during the said period from February 1, 2013 to April 30, 2014 ( KRW 15,000) and the claim amount in the table in the table in the table in the table in the table in the table in the table in the table in the table in the table in the table in the table in the table in the table in the table in the attached Table in which the Plaintiff sought as the date of each payment, as of June 12, 2014, the amount of KRW 5% per annum from the following day to June 12, 2014, the date of delivery of the application for changing the claim in the table.

4. Conclusion

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

The presiding judge, judges and assistant judges;

Judges' Senior Completion

Judges Gangseo-Ilia

1) The Plaintiff is an employee who is not a teacher of C University, but Article 13(2) of the Defendant’s Regulations on Disciplinary Action against Teachers and Employees, as well as the Enforcement Decree of the Private School Act.

Since the above legal principle is the same provision as the ruling, it can also be applied to the disciplinary proceedings against the plaintiff.

A person shall be appointed.