A. The standard for determining legitimacy in a case where an employer’s unilateral declaration of intent terminates a labor contract relationship

B. The order of the court of final appeal in accordance with the principle of prohibition of disadvantageous changes where the court below retires the dismissal of a claim

A. In a case where a labor contract relationship with an employee is terminated by the unilateral expression of intent of the employer under the collective agreement and personnel management regulations, there must be a “justifiable cause” as provided by Article 27(1) of the Labor Standards Act, ultimately, in order to recognize it as legitimate. Moreover, whether it is justifiable or not shall be determined reasonably by comprehensively taking into account all the circumstances such as whether the temporary retirement of the employee was attributable to or caused by business injury, treatment period of the employee, influence on the company due to the temporary retirement of the employee, etc

B. Although it was erroneous for the Plaintiff to dismiss the lawsuit on account of the lack of benefit in confirmation, as long as the Plaintiff’s claim was groundless, the lower judgment should be reversed in the case where only the Plaintiff appealed and dismissed the claim, and thus, the lower judgment should be maintained.

A. Article 27(1) of the Labor Standards Act; Articles 395 and 385 of the Civil Procedure Act

A. Supreme Court Decision 92Nu6082 delivered on November 13, 1992 (Gong1993,135) B. Supreme Court Decision 82Nu491 delivered on December 27, 1983 (Gong1984,33) decided July 7, 1987 (Gong1987,1304) decided on March 28, 1989 (Gong1989,675)

Plaintiff

[Defendant-Appellee] Plaintiff 1 et al., Counsel for defendant-appellee

Daegu High Court Decision 92Na4438 delivered on December 3, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The facts duly established by the court below are as follows.

(A) From September 9, 1988, the Plaintiff, who served as a taxi driver for the business purpose of the Defendant company, was faced with an upper part of the upper end of the 1st ton of the 1st ton of the 1st ton of the 1st ton of the 1st part of the 1st part of the 1st ton of the 1st part of the 1st part of the 1st ton of the 1st part of the 1st part of the 1st ton of the 1st part of the 1st to the 8th day of the 1991.

(B) As of January 25 of the same year, the Plaintiff submitted to the Defendant Company a two-month leave period from the date of the above accident to March 16 of the same year pursuant to Article 49 subparagraph 2 of the collective agreement of the Defendant Company and Article 17 subparagraph 2 of the Personnel Regulations, and received an additional diagnosis that requires further treatment for 2 to 3 months, even though the Plaintiff was hospitalized at hospital for 8 weeks, but did not completely recover from hospital, and instead did not completely recover from hospital, the Plaintiff only submitted an additional diagnosis that the Defendant Company needs further treatment for 2 to 3 months in the future through Nonparty 2, the chairman of the Defendant Company’s trade union, and did not submit a reinstatement under the collective agreement or personnel regulations of the Defendant Company.

(C) However, according to the provisions of Article 49 of the collective agreement and Article 17 of the Personnel Regulations of the Defendant Company, when medical treatment or relaxation is needed for not less than three weeks of injury other than work, the Defendant Company may be temporarily dismissed for a period not exceeding two months, and the Defendant Company shall retire without submitting the reinstatement within seven days before the termination of the grounds for temporary retirement.

(D) On April 1 of the same year, the defendant company held a personnel committee meeting with the case of processing the plaintiff's leave of absence as a subject of the meeting, and recommended that the non-party 3, the representative director of the defendant company, who is the chairperson of the defendant company, should retire from the company because he had many difficulties in the management of the company to the plaintiff, but did not raise any objection thereto. The defendant company, according to the decision of the personnel committee, issued a disposition of dismissal against the plaintiff on the ground that the plaintiff was under a long-term leave of absence without submitting a source of reinstatement even after he was over the period of his work other than those stipulated in the above collective agreement and personnel regulations, and notified the plaintiff on April 26 of the same year that he was dismissed by the resolution of the personnel committee according to the long-term leave of absence, and on June 10 of the same year, the plaintiff received 883,767 won from the defendant company

2. Under the above factual basis, the court below interpreted the plaintiff's injury caused by the above traffic accident to mean "before the expiration of the period of leave" in the above collective agreement or personnel regulations, although the plaintiff's injury constitutes an injury other than work, there are many cases where it is difficult to predict the period of leave due to injury other than work, unlike other reasons, for which the reason for leave is closed for not more than 2 months, it is possible to leave only for not more than 2 months, and where the plaintiff does not return within 7 days after the expiration of the period of leave." In the case of leave due to injury other than work, the court below interpreted it as "before the expiration of the period of leave" in the above collective agreement or personnel regulations. In light of the records, the judgment of the court below is acceptable and there is no violation of law such as theory of lawsuit.

3. (A) Meanwhile, the court below rejected the lawsuit of this case on March 17, 1991 on the ground that the plaintiff's temporary retirement from office for two months due to the injury other than the above work and did not submit the sources of reinstatement even after the termination of the period of temporary retirement under the above collective agreement and personnel regulations, and even if the defendant company held a personnel committee as above and notified the plaintiff separately, it should be deemed that the procedure was a notification of the concept that the plaintiff had already retired due to the above reason. This does not result in the legal effect as a disciplinary dismissal only between the plaintiff and the defendant company. Thus, the plaintiff's lawsuit of this case seeking nullification of the period of temporary retirement from office for two months due to the disciplinary dismissal and the plaintiff's lawsuit of this case, which was unlawful, on the ground that there was no benefit of confirmation, and thus, it was unlawful without examining it.

(B) However, according to the above collective agreement and personnel regulations, the phrase "in case of non-submission of a re-appellant" means that a company can take a disposition of retirement unless the re-appellant is submitted, or that the status as an employee of the company is terminated at the time of such retirement. Thus, in this case, the defendant company's above disposition on April 1, 191 was taken in the appearance of dismissal, but its substance is a retirement disposition in accordance with the collective agreement and personnel regulations. As such, if a labor contract relationship with an employee is terminated by the collective agreement and personnel regulations by unilateral expression of intent of the employer, the "justifiable cause" under Article 27 (1) of the Labor Standards Act should be ultimately deemed legitimate. In addition, the existence of legitimacy in this case should be determined reasonably by comprehensively taking into account all the circumstances such as whether the plaintiff's temporary retirement was caused by a company's cause or an occupational injury, the period of treatment of the plaintiff, influence on the company due to the plaintiff's long-term temporary retirement (see Supreme Court Decision 92Nu6082, Nov. 13, 1992).

The judgment of the court below, which judged automatically to be retired from office due to the expiration of the period of the plaintiff's temporary retirement, shows to the purport that its legitimacy can be recognized only for the reason that the formal requirements under the above collective agreement have been met. However, according to the records, the plaintiff's injury in this case cannot be deemed occupational injury, the plaintiff must receive medical treatment for 2,3 months after the expiration of the above period of temporary retirement, and the defendant company should leave a taxi as a taxi company during the period of the plaintiff's temporary retirement, and the plaintiff's ability to operate as a taxi driver due to the loss of 36% labor ability due to the traffic accident in this case, cannot be viewed as legitimate disposition of the defendant company's retirement in this case, and it cannot be viewed as a arbitrary exercise of personnel authority.

(C) However, according to the records, the purport of the plaintiff's lawsuit in this case is that the plaintiff sought confirmation of the existence of the status as employee of the defendant company regardless of whether the defendant company's dismissal was or not, notwithstanding the above disposition of the defendant company, the plaintiff sought confirmation of the existence of the status as employee of the defendant company. Thus, the court below did not determine the legitimacy of the retirement disposition as of April 1, 1991 after entering the principal lawsuit, and the plaintiff was retired ipso facto from the defendant company on March 17, 1991, and it was determined that the defendant company's above disposition as of April 1, 1991 was merely a notification of the concept of the above ipso facto retirement, and it was erroneous that the lawsuit in this case seeking confirmation of the invalidity of the retirement disposition as of April 1, 1991 was dismissed because there was no benefit of confirmation, and as seen earlier, unless the plaintiff's claim in this case is justified, it should be justified to reverse the judgment of the court below and dismissed the plaintiff's claim in this case.

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

Justices Choi Jae-ho (Presiding Justice)